FOLDER NO.180.2 ALASKA LEGISLATIVE COUNCIL Legislative Reference Library Juneau, Alaska

CONSTITUTIONAL STUDIES

PREPARED ON BEHALF OF THE

ALASKA STATEHOOD COMMITTEE

FOR THE

ALASKA CONSTITUTIONAL CONVENTION £:.‘ :>>*. ....-'. A-*

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PUBLIC ADMINISTRATION SERVICE -V CONSTITUTIONAL STUDIES

Prepared on behalf of the

ALASKA STATEHOOD COMMITTEE

for the

ALASKA CONSTITUTIONAL CONVENTION

Convened November 8 , 1955

PUBLIC ADMINISTRATION SERVICE

Volume 2 of 3 TABLE OF CONTENTS

VOLUME 1

I. The State Constitution within the American Political System

II. Civil Rights and Liberties

III. The Alaskan Constitution, and the State Patrimony

IV. Suffrage and Elections

VOLUME 2

V. The Legislative Department

VI. The Executive Department

VII. The Judicial Department

VOLUME 3

VIII. The Constitution and Local Government

IX. State Finance

X. Legislative Structure and Apportionment

XI. Constitutional Amendment and Revision

XII. Initiative, Referendum, and Recall V

THE LEGISLATIVE DEPARTMENT

A staff paper prepared by Public Administration

Service for the Delegates to the Alaska

Constitutional Convention

November, 1955 TABLE OF CONTENTS

The Legislative Department 1

State Legislative Powers 2 Major Areas of State Activity and Power 3 Legislative Powers Relating to the Executive and Judiciary 4

Limitations Imposed on Legislative Action 5 Limitations against Special and Local Legislation 6

Qualifications, Election, and Tenure of Legislators 10 Qualifications 11 Age Requirements 11 Citizenship and Residence Requirements 12 Election and Terms of Members 12 Judging Qualifications and FillingVacancies 14 Compensation of Legislators 16 Privileges and Immunities 17 Dual Office Holding 19

Legislative Organization and Procedure 20 Sessions 20 Officers and Rules 24 Committees 24 Quorum 26 Style Limitations 27 Procedural Limitations 2S

Legislative Services 32 Lobbying 36 General Comments 37 THE LEGISLATIVE DEPARTMENT

State Government in the United States is uniquely an

American product. Although the states represent wide variations in size, condition and other factors, they share in common a status which might be called "constitutional middlemen." In the formation of our Federal Union the states consented to strip themselves of certain powers which were delegated to the national government. The remaining powers, variously termed reserved or residual powers, were retained by the individual states. But within the states, the ultimate repositories of political power are the people. This constitutional belief of popular sovereignty when coupled with its companion doctrine of limited government, or the belief that certain powers and activities should be denied to government and government officials, led to the formulation of state constitutions which are essentially limitations on power.

Indeed, a student of comparative government reading American state constitutions for the first time would find little in their legislative articles about the specific powers of state government in contrast to the multiplicity of limitations, pro­ hibitions, and elaborate prescriptions governing conduct, pro­ cedures, and other details. State Legislative Powers

As mentioned above, the lawmaking powers of state legis­ latures are restricted by certain powers given to the federal government. Article I of the Federal Constitution assigns cer­

tain functions to the federal government and definitely pro­

hibits them to the states. Among the acts prohibited are the

making of treaties, the granting of letters of marque and repri­

sal and the passing of bills of attainder, the coining of money,

the passing of ex post facto laws, the making of anything but

gold and silver legal tender for the payment of debts, the pass­

ing of laws impairing the obligation of contract, the granting

of titles of nobility, the levying of tonnage or export duties,

and finally, engaging in war or keeping troops or ships of war

in time of peace. Even when dealing with a subject which comes

within the scope of their constitutional authority, the state

legislatures are restricted in the exercise of their power by

important provisions of Amendment XIV; namely, those clauses

which guarantee due process of law, equal protection of the laws,

and the privileges and immunities of citizens.

Of course the legislature is also subject to 3uch inter­

pretations of the Federal Constitution and the constitution of

the state as the courts may choose to give them. In addition

to the normal hazards of judicial review, some state legislatures

are confronted with the special doctrine of implied limitations which has been designed by the courts to limit legislative powers by narrow interpretations of delegated powers. Theoretically, the legislature should be entitled to exercise those powers not denied to it by either the Federal or the state constitution; but when the expressed constitutional restrictions are reinforced by this narrow doctrine of interpretation, the lav/making body

is in a straitjacket.1

Major Areas of State Activity and Power

Within the framework of the federal system and limitations

imposed by state constitutions, the states undertake a wide var­

iety of services— each of which from time to time, requires

legislative deliberation and action. In most state constitutions

a brief section stipulating that the legislative authority of

the state is vested in the legislature has been sufficient to

endow it with power to act in a wide variety of fields. These

may be generally classified as follows;

1. Educations public school systems, institutions of special training and higher learning, and library services.

2. Highways, highway safety, and aviation.

1 In Rathbone v. Wirth, 45 N. W. 15, 23 (1896) the Court of Appeals of New York gave a classic statement of the objection­ able doctrine: "When the validity of legislation is brought in question, it is not necessary to show that it falls appropriately within some express written prohibition contained in the con­ stitution. The implied restraints of the constitution upon legislative power may be as effectual for its condemnation as the written words, and such restraints may be either in the language employed or in the evident purpose which was in view and the circumstances and historical events which led to the enactment of the particular provisions as a part of the organic law." 3 . Health and welfare programs.

4. Defense and public protection, including civil defense and state fire protection.

5. Corrections. including penal institutions and correctional systems.

6. Planning and development, including economic devel­ opment, housing and urban redevelopment.

7. Natural Resources, including conservation, admin­ istration and research services.

8. Labor and industrial relations, including employ­ ment security administration.

9. Regulatory activities, including occupational licensing, utility and insurance regulation, and al­ coholic beverage control.

10. Intergovernmental Relations, including inter­ state relations, state-federal relations, and local government structure and relations.

In addition to these fields of activity, the state legisla­ ture exercises the taxing power and important controls over the expenditure of state funds. It also plays an important role in

the field of suffrage and elections.

Legislative Powers Relating to the Executive and Judiciary

The legislature's powers end relationships with the execu­ tive and judicial branches are subject to some variations from

state to state, yet these entail additional legislative tasks.

On the judicial side, for example, the legislature must constant­

ly make judgments with regard to the constitutionality of measures

before it in the light of current judicial interpretations. Im­

portant influences can be exercised over the executive or judiciary through such appointive or appointment-reviewing powers and impeachment authority as are assigned to the state legislature by the constitution. Probably the most significant legislative authority, particularly affecting the executive branch, is the power of the legislature through its committees to investigate any subject, department, o r agency as may be

necessary for the proper performance of its duties in order to

determine compliance with either constitutional or statutory

requirements.

Limitations Imposed on Legislative Action

Because of the low level of public esteem to which state

legislatures fell in the late 19th and early 20th Centuries,

legislative articles of state constitutions are predominantly

limitations, restrictions and prohibitions which are imposed

on that branch. Indeed, this trend has been carried as far as

the development of devices whereby the people reserve the power

'go initiate as well as to review legislation thereby further

delimiting or dividing legislative authority.

The problem of what, restrictions on the exercise of legis­

lative authority should be embodied in the state constitution

raises an important question about the relation oflthe constitu­

tion to progress. If, on the one hand, the restrictions are

highly specific and well defined, there is always the danger

that they may rapidly become out-moded and develop into barriers 6 to necessary reform. This is well illustrated, for example, by state constitutional restrictions upon the power to tax. How­ ever, there are also difficulties attendant upon the effort to express limitations in broad and general terms. In the first place, it is the difficulty of uncertainty which leaves the legislative body more or less without guidance as to what it may or may not do. Secondly, it imposes upon the courts a heavy measure of responsibility in constructing the meaning of the restriction and determining whether or not any given legis­ lative enactment violates it. This situation is well illustrated by the history of the so-called "due process" clause in both our state and federal constitutions. The use of broad, general limitations is perhaps the better constitutional practice. Un­

less a court develops and applies a dangerous theory that con­

stitutional amendments represent an attack on the constitution

and are accordingly to be opposed merely because they are

amendments, the ultimate sovereignty of the people to make and

amend the constitution can undo the effects of judicial decisions.

Limitations Against Special and Local Legislation

Abuses in the passage of special bills for individuals

and corporations, and local bills applicable only to particular

communities, have caused many constitution makers to specifically

prohibit such practices or to set forth criteria which legisla­

tion must satisfy. Many states have gone to great extremes in their constitutional provisions limiting legislative power.

These restrictions are aimed at attaining uniformity of laws throughout the state and preventing legislators from exchanging courtesies for the passage of special laws for the benefit of a favored few. These restrictions fall into three categories;

1. Prohibitions against special, private, or local laws on any matters and in all situations which can be covered by general law .

2. Delineation in the constitution of subjects or situations which cannot be dealt with by special or local laws.

3. A requirement that all general laws be uniform in their operation throughout the state.

4. The establishment of a special procedure for notice before legislation affecting one locality may be considered by the legislature and for local referendum before the enactment takes effect.

Indeed even some of the newly revised state constitutions use several of the above devices to avoid special and local legisla­ tion. The New Jersey Constitution of 1947 specifically sets forth 14 subjects about which the legislature may not pass any 2 private, special, or local laws. In addition, this constitu­ tion provides that '’No general law shall embrace any provision of a private, special, or local character;"3 and an additional requirement of special public notice prior to the enactment of private, special, and local laws.4 The Missouri Constitution

2 Article IV, Section VII, para. 1, 9.

3 Art. IV, Sec. VII, para. 7.

4 Art. IV, Sec. VII, par. 8. See also Florida Constitu­ tion, Article III, Sec. 21. of 1945 not only lists 29 subjects which shall not be enacted by local or special law, but makes the applicability of a 5 general law a judicial question to be judicially determined.

In addition the indirect enactment of local and special laws 6 by the partial repeal of general laws is prohibited and a special public notice requirement is stipulated for pending 7 local or special legislation. Even a brief examination of the listed subjects indicates that no modern legislature with aver­ age standards of integrity and decency would deal with them by special legislation, yet at one time or another these subjects have been dealt with by legislation in practically all states.

However, as one authority on this subject observes:

,fIt may . . . be necessary to adopt special acts to meet emergency situations, to free communities from special acts passed years ago, and— in the absence of suitable administrative arrangements for the handling of claims— to make possible the payment of legitimate claims of citizens against the state. Legislatures ought to have power to meet such situations when they arise, and the public ought to have sufficient con­ fidence in them to permit them to do so."8

A distinctive type of special legislation is local legisla­ tion or that which applies to any political subdivision or sub- divisions of the state less than the whole. This field of legislative activity is characterized by great volume and often

5 Missouri Constitution, Art. Ill, Sec. 40.

6 Missouri Constitution, Art. III, Sec. 41.

7 Art. Ill, Sec. 421. 8 W. Brooke Graves, American State Government. 1953, p. 205. '-f-l

ludicrous evasions of constitutional prohibitions. In many

states, as soon as constitutional limitations upon local legis­

lation were adopted, the legislature promptly set up classes

of local units, by the skillful manipulation of which constitu­

tional restrictions might be evaded. Classification has been

attempted on a subject-matter basis, a geographical basis, a

population basis, a property valuation basis or combinations

of these. Where the geographical basis is used and permitted

by the courts, a law may be made applicable to any type of local

unit.9 Through the use of combinations of factors, classifica­

tion can be used to pinpoint the application of unwanted or

special favor legislation to specific local units. In the so-

called "Population-Bracket" bills in Texas, it is reported that

more than a dozen different combinations of elements were used.10

In spite of attempts to curb local legislation, the quan­

tity of it continues to constitute a significant portion of the

total output in many states. There are, on the other hand, some

9 Ibid. p. 286. The author reports a case in which the Supreme Court of Pennsylvania vigorously invalidates an attempted classification; "This is classification run mad. Why not say all counties named Crawford with a population exceeding 60,000, that contains a city called Titusville, with a population over 8,000 and situated 27 miles from the county seat? or all counties with a population of over 60,000 watered by a certain river or bounded by a certain mountain? There can be no proper classifi­ cation of cities or counties except by population. The moment we resort to geographical distinctions we enter the domain of special legislation, for the reason that such classification operates upon certain cities or counties to the perpetual ex­ clusion of all others." Commonwealth v. Patton. 88 Pa. 258. 259 (1879).

10 Benton? Wilbourn Z ., "Population Brackets as a Method of Classification," Southwestern Social Science Quarterly. Sept, 1950, pp. 117-135. situations which can be handled only by local laws. This may be good as well as bad. But as conditions change and the need for modification arises, local legislation tends to create more local legislation. The Model State Constitution deals with this problem with a rather unique set of requirements. Section

310 on Local and Special Legislation stipulates:

The legislature shall pass no special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a matter for judicial determination. No local act shall take effect until approved by a majority of the qualified voters voting thereon in the district to be affected, except acts repealing local or special acts in effect before the adoption of this constitution and receiving a two-thirds vote of all the members of the legislature on the question of their repeal.

Qualifications. Election, and Tenure of Legislators

Ordinarily, one of the first considerations in devising

a legislative article is that of the structure of the legisla­

ture. The alternatives of unicameralism and bicameralism are

usually considered with their real and alleged strengths and

weaknesses. Discussion of these alternatives is presented in

Staff Paper No. X on Legislative Structure and Apportionment

because of the close relationship existing between determina­

tions as to the basis of legislative representation and the

structure and size of the legislature. It is hoped that a group­

ing of these topics will facilitate determinations as to legis-

lative structure and size which are best adjusted to give effect

to the selected representation pattern, both at present and in

the future. 11

Qualifications

Constitutional requirements regarding age, residence, citizenship, and the barring of dual office holding are common in state constitutions to define the fundamental qualifications of legislators. Religious and property qualifications of early constitutions have gradually been eliminated and in general most states permit any person who is qualified to vote for the members of the state legislature to become a member himself. This would seem to be a reasonable and sufficient safeguard and would not restrict the field of qualified candidates. Yet as shown below many state constitutions elaborately define and restrict quali­ fication for legislature membership despite the fact that the most significant qualifications of legislators are those which the voters apply at the polls.

Age Requirements. State constitutions are usually explicit regarding age qualification, stating either that a person shall have reached a certain age or that he shall be a duly qualified elector. Where there is an age qualification, most states do not have the same for members of both houses. Twenty-one years of age is most common for membership in the lower house.11 Age qualification for membership in the upper house differs widely as shown by the following tabulation.

11 Delaware, Kentucky, and Missouri specify 24 years; Arizona, Colorado, South Dakota, and Utah have an age quali- fication of 25 years.

___ 12

Mo. of States Age Qualifications for Upper House Membership

18 21 1 24 21 25 1 26 1 27 6 30

Citizenship and Residence Requirements. The citizenship requirement is present in all states and constitutions either specify that a person must be a citizen or a qualified elector in order to be a member of the legislature. Some constitutions further stipulate the period of citizenship which go as high as five years in the case of Maine. State citizenship for a cer- 12 tain period of time is occasionally specified. Residence requirements in both the state and county for membership in the legislature exist in most constitutions, either expressly or

by direct implication. These range from one to five years

Election and Terms of Members

In all states legislative terms are either for two or four

years. Short terms are the rule for members of lower houses,

in 43 of the 47 states with two houses, House members serve for

two years.13 Longer terms are generally provided for state

senators: in 32 states they serve for four years; in 16 states

Alabama and California have state citizenship require­ ments of three years' Georgia and New Jersey of four years for the upper house and two years for the lower house.

Only in Alabama, Louisiana, Maryland, and Mississippi do they have four-year terms. (including Nebraska) they serve for two. Legislatures in a

quarter of the states in 1952-53 considered measures to lengthen legislative terms so as to increase the amount of time the

legislator might devote to public business, to reduce the time

consumed in running for re-election, and to retain experienced

legislators longer. The proposed changes would have increased

House terms from two to four years and Senate terms correspond­

ingly, except in California, Illinois, Kentucky, and South Caro­

lina, where Senate terms would have been increased from four

to six years.

In setting the length of term for legislators a satisfactory

balance should be sought between providing for legislative

responsiveness to the ever-changing will of the people and a

deliberative, experienced body of lawmakers. It would seem

desirable to have the terra long enough to permit a legislator

to participate in two or mere sessions, so that provisions

governing sessions should be considered in determining the

length of terms. There is really no important basis for the

use of different terms for the two houses. This is largely due

to the federal pattern and a device to attain some stability

and to assure some experience in the legislative process. The

objectives of stability and responsiveness might both be served

by longer legislative terms and the election of a portion of

each body biennially. Ordinarily, state constitutions contain sections on the manner and time of electing legislators. Staff Paper No. X on

Legislative Structure and Apportionment discusses problems and alternatives in determining the basis of representation which will affect the manner in which legislators are selected. Staff

Paper No. IV on Suffrage and Election discusses the time and

nature of the election process. Depending on the nature of pro­

visions for elections decided upon in the Suffrage and Elections

Article, the prescription of time of election of legislators

could be made by reference to the elections article, or a stipula­

tion for the regular election of some or all legislators in each

odd or even year. The time of election requirement must of course

be related to decisions about the time and nature of legislative

sessions.

Judging Qualifications and Filling Vacancies

In one form or another state constitutions specify that

each house is made the judge of the elections and qualifications

of its own members. In case any controversy arises concerning

the validity of an election to a seat in either house, or if

any question is raised involving the qualifications of persons

elected to either house, the house concerned may investigate

and decide, usually by a majority vote, between rival claimants

or the question of the eligibility of the person. The Model

State Constitution, (Sec. 308) provides: The legislature shall be judge of the election, returns and qualifications of its members and may - by law vest in the courts the trial and determina­ tion of contested elections of members.

Provisions for filling vacancies in the legislature are of three general types: (1) election by popular vote at either a special or regular election; (2) appointment by the governor; and (3) action by some local governmental or partisan agency.

Ideally, provision for a special local election to fill the vacancy would be preferred, but considerations of time and cost have, except in some of the more populous states, operated agains this device. Hence a large number of states resort to guberna­ torial appointments. Selection by some responsible and repre­ sentative local agency has the merit of preserving action at the local level. The Model State Constitution sets forth a unique procedure; Section 305 provides:

Whenever a vacancy shall occur in the legislature, it shall be filled by a majority vote of the remaining members from the district in which said vacancy occurs, or in such other manner as may be provided by law. If, after thirty days following the occurrence of the vac­ ancy, it remains unfilled, the governor shall appoint some eligible person for the unexpired term.

If some type of proportional representation is used, another available device is a recount of the ballots cast as the orig­ inal election by the locality left unrepresented by the vacancy, thereby preventing a district majority from taking a vacated

seat of a district minority. Compensation of Legislators

There is general agreement that compensation of state legislators has been and in most states continues to be too low.

In 27 states the salaries are fixed by the constitution, while in the remaining 21 states it is a matter for statutory action, although, in the latter case, provision is ordinarily made that such compensation may not be increased or decreased during the term for which the members have been elected. The two methods of payment employed are the per diem and lump sum. Eighteen states employ per diem payments which range from $5.0014 to

$30.00.15 At present 31 states1 6 . employ a lump sum or salary plan which range from $200 in New Hampshire to $10,000 (in

Illinois and New York) per biennium. Most states provide addi­ tional compensation for attendance at special sessions. Allow­ ances for travel expenses, usually on a mileage basis, and for miscellaneous expenses, such as postage and supplies, are norm­ ally provided in addition to basic pay or per diem payments.

It is generally urged that legislative salaries should not be

fixed by constitutional provision, but rather, the annual salaries

should be fixed by statute at a level which will permit competent

persons to serve in the legislature without financial sacrifice.

In Kansas, North Dakota, and Rhode Island.

15 In Louisiana. 16 Oklahoma uses a combination of daily pay and biennial salary. The only limitation which might be considered, as recommended

in the Model State Constitution is that compensation "shall

neither be increased or diminished during the term for which

they are elected." (Sec. 306)

Privileges and Immunities

The most important privileges commonly granted to legisla­

tors is freedom from arrest and freedom of accountability for

words spoken in the course of the exercise of the legislative

function. All but five state constitutions provide for immunity

from arrest or civil process although silence on this matter

would probably result in the allowance of this privilege under

common law. About half of the state constitutions follow the

precedent of the Federal Constitution (Art. I, Sec. 6) and grant

immunity only during the session, and while going to and from

the session. Other constitutional provisions are normally

variations of this wherein specific time limits for immunity

prior and subsequent to the session are set forth. 17 Some

states distinguish between immunity from arrest and immunity

from civil process, making different provisions for the duration

of these immunities.

1 7 Michigan, Mississippi, Missouri, Nebraska, and Utah specify 15 days before and after; South Carolina and West Vir­ ginia specify 10 days before and after; Rhode Island specifies two days before and after; and Texas, reflecting pre-automotive speeds, specifies one day for every 20 miles to be travelled. Constitutional provisions granting immunity from account­ ability for words spoken in the course of exercising legislative functions applies to tribunals or courts other than the legis­ lature. The Model State Constitution (Sec. 309) briefly speci­ fies:

For any speech or debate in the legislature, the mem­ bers shall not be questioned in any other place.

This provision is probably not as broad as immunity granted for "words uttered in the exercise of his legislative function."

To these privileges commonly guaranteed by the constitution there may be added numerous others under the provisions of the rules of the house. Of course these immunities do not preclude the legislature from disciplining a member for unbecoming con­

duct. Although legislative officers are not subject to impeach­

ment, they may normally be expelled by a two-thirds vote of the

house to which they belong; after expulsion they are subject to

indictment and proceedings for any criminal offenses with which

they may have been charged.

A prior criminal record does not normally bar a legislator

from being seated unless the constitution details specific

crimes or classes of crimes as making a person ineligible for

membership in the state legislature. In this regard it is

perhaps best to permit the electorate to express their judg­

ment at the polls. Dual Office Holding

Various arguments are advanced for prohibitions against dual office holding; however, they are all variations of the strict application of the separation of powers doctrine. Be­ yond this, the protection of legislation against improper motives of legislators and prevention of executive dominance through the manipulation of appointing powers have been advanced to justify absolute prohibitions of appointment of legislators to certain positions.

The subject of dual office holding can be divided into two parts; forbidden offices and incompatible offices. For­ bidden offices are those for which a member of the legislature cannot qualify. These may be set forth in the constitution and normally refer to gubernatorial appointments or those of the legislature itself to a civil office of the state. Incompatible offices are those regarding which there is no prohibition or disqualification against acceptance, but the act of acceptance vacates the office first held.

It is wise to approach the determination of prohibitions against dual office holding by legislators with considerable caution. Once constitutional or statutory provisions are in effect, efforts of legislators to change them are frequently confused with supposed personal interest. Moreover, there is much to support the view of the state legislature as a good training ground for further public service. The extent of the prohibition can be determined only by weighing these advantages against the undermining influence on the legislative process of any suspicion of motives of personal gain by legislators.

Legislative Organization and Procedure

It is now necessary to examine the formal processes of the enactment of legislation in order to determine the advis­ ability of providing constitutional guidelines or limitations regarding such questions as organization, rules, and procedures; the provision and selection of officers and supporting staff; the duration and frequency of legislative sessions and compar­ able practices which might have some effect on the quality and scope of legislation.

Sessions

The decision of the Convention on the frequency and dura­ tion of regular sessions of the legislature will affect its relationships with the executive branch as well as requirements

for its own organization. Three questions arise in considera­

tion of the matter of sessions. (1) Shall limited or unlimited,

annual or biennial sessions be provided for? (2) Shall such

sessions be split or continuous?; and (3) What provisions should

be made for special sessions? 18 At present ten legislatures meet annually, a significant

18 -■ Arizona, California. Colorado. Maryland. Massachusetts, Michigan, New Jersey, New York, Rhode Island, and South Carolina. In the states which are underscored, legislatures meeting in even-numbered years deal with the budget, revenue, and tax matters change since 1943, when only four legislatures had annual ses­ sions. The remaining 38 states hold biennial regular sessions, all but four (Kentucky, Louisiana, Mississippi, and Virginia) in the odd-numbered years. The trend toward annual sessions is continuing; in 1952-53 20 additional state legislatures con­ sidered this matter and four states initiated constitutional amendments to provide annual sessions.

Limitations on the length of regular sessions exist in

32 states. These range from 36 legislative days19 in Alabama to 150 calendar days in Connecticut and Missouri. Of the re­ maining 16 states which have no limit on the duration of regul­ ar session, five are states in which annual sessions are auth­

orized.

The philosophy which favors biennial sessions leads also to constitutional limits on the duration of sessions. It is argued that the continued presence of annual legislatures un­

settles large segments of the population, hampers administra­

tive processes by legislating on details, does not concentrate

legislators' attention on important proposals in a businesslike

manner, and makes it difficult for competent but busy citizens

to serve. All these arguments are sharply challenged today.

19 In California and Maryland, the sessions in even-num­ bered years, dealing with the budget, revenue and tax matters, are limited to 30 calendar days. 22

The operational requirements of state government, particularly

the annual budget device through which the legislature may exer­

cise effective control over administrative agencies, and the

rapid pace of life and communal affairs demands a legislature

that is in touch with the pulse of the. state and has sufficient

time to deal with a multitude and variety of problems. Indeed,

the trend may well continue in the direction of providing that

the legislature be "a continuous body during the biennium for

which its members are elected," meeting "in regular sessions 20 quarterly or as such times as may be prescribed by law."

Most state legislative sessions are continuous from the

date of convening until adjournment. Six states utilize the

device of the :,split session1* or ''recess session" to enable

legislators and the public to study pending proposals in greater

leisure, to prevent the evil of last-minute introduction and

passage of bills, to review executive vetoes, and for other

■purposes. The split session has not worked out very well in

practice' it has resulted in the introduction of skeleton bills

and created a pre-recess rush not dissimilar to the terminal

rush it was intended to eliminate. Constituents are in fact

rarely consulted during the interim and older and more experienced

legislators are practically unanimous in desiring its abolition

or amendment.

20 Model State Constitution, Art. Ill, Sec. 307.

21 Alabama, California, Georgia, N e w Jersey, and Wisconsin. The Massachusetts legislature is constitutionally empowered to use this device but in practice its sessions are not split. 23

K i /?! All states make provision for the calling of special

sessions in addition to regular sessions. Usually the governor

is authorized by constitution to summon the legislators in special session; in 30 states he is authorized further to speci­ fy the subject or subjects to be considered thereby prohibiting

legislators from treating any other matter. Ten states also

give the legislature the power to convene on its own initiative;

in some of these states23 a petition by two-thirds of the mem­

bers of both houses is necessary and Georgia requires a three-

fifths majority. It is not entirely clear in all of the states

of this group whether or not the convening special session

requires that it be called by the governor. Twenty-nine states

do not limit the duration of the special sessions; among those

states which restrict the length of sessions, the limits range

from 15 days in Arkansas and New Hampshire to 70 days in

Georgia.

Any provisions for special sessions will of course rest

on decisions about the frequency of regular sessions. If

biennial or limited sessions are prescribed, consideration

should be given to permitting the legislature to determine the

necessity of calling a special session, the length of the spec­

ial session, and the limitation if any of the subjects which

can be treated.

22 Arizona, Connecticut, Georgia, Louisiana, Massachusetts, Nebraska, New Hampshire, New Jersey, Virginia, West Virginia.

Arizona, Louisiana, Nebraska, Virginia, and West Vir- ginia. Officers and Rules

All state constitutions contain provisions recognizing the power of the legislature to choose its own officers and to determine the rules of its own proceedings. The senate is denied the right to designate its permanent presiding officer in 37 states where the lieutenant governors assume that role.

The major officers normally include a secretary or a chief clerk for each house who is charged with all clerical work and printing for the appointing chamber. These officers are norm­ ally chosen by vote of the members; minor officials and support­

ing staff are appointed by the elective officers, or, as in

Wisconsin, under civil service rules. Supporting legislative

staff is discussed below. The need for a provision granting

the legislature the power to adopt rules is questionable be­

cause there is no way to make it act if rules are not adopted.

Some states have attempted through constitutional provisions

to insure the rapid organization of the legislature by denying

per diem payments after a stated period until the legislature

is finally organized.

Committees

Committee deliberations are frequently the most important

part of the legislative process. The quantity and scope of

legislative proposals requires legislatures to rely heavily

upon their committees for detailed consideration of bills. Platters affecting the number of committees, their size, the

method of appointment, and their procedures are left almost

exclusively to legislative rules. The rare constitutional

provisions which are expressly applicable to committees usually

deal with the incurring of committee expenses or with committee 2 4 consideration of bills. Eight states require that all bills

be referred to committee for consideration; Texas and Mississippi

make the receipt of the committee’s report a condition precedent

t o the adoption of the measure; and in Mississippi a report on

each measure referred to a committee is r e q u i r e d .

A few states have constitutional provisions for the with­

drawal of bills from committees though this is normally incor­

porated in legislative rules. A Missouri constitutional pro­

vision (Art. III, Sec. 22) enables a one-third vote of elected

legislators to withdraw a bill from committee.

Because of the importance of committee work in the conduct

of investigations and in the formulation of legislation, there

are two important considerations which some authorities argue

24 24Alabama, Colorado, Mississippi, Missouri, Montana, Pennsylvania, Texas, and Wyoming.

25 25The provision is easily evaded by reporting back on the last legislative day, thereby assuring the defeat of the measure.

26 26The Model State Constitution sets forth a similar pro­ vision in Article III, Sec- 312. Kentucky’s Constitution (Sec. 46) and Michigan’s Constitution (Art. V, Sec. 15) provide modi­ fied withdrawal procedures. should be dealt with in a state constitutions

1. Should usual constitutional provisions requiring publicity and recording of legislative sessions be extended to committee proceedings?

2. Should the constitution prescribe advanced public notice of committee hearings which specify the subjects to be considered?

Dr. Frederic H. Guild urges the inclusion of both these provi­ sions to avoid hasty or arbitrary committee action. Moreover he argues

"Sufficient notice of a committee hearing is as funda­ mental to due process of law-making as adequate notice or service in cases before the courts."27

Quorum

Because of fear of rule by minorities many state constitu­ tions set forth quorum requirements; in addition, consideration of certain subjects may require a quorum greater than that which normally must be present. All but four state constitu- tions28 require a majority of all the members to constitute a

27 Model State Constitution. National Municipal League, p. 29. These provisions are encompassed in Article III, Sec. 312; "The legislature may establish such committees as may be necessary for the efficient conduct of its business. Each committee shall keep a journal of its proceedings as a public record .... Notice of all committee hearings and a clear statement of all subjects to be considered at each hearing shall be published one week in advance in the journal."

28 Indiana, Oregon, and Texas have a two-thirds quorum re­ quirement. Tennessee requires "two-thirds of all the members to which each house" is entitled. quorum; in three states of this group the quorum is fixed at 29 a majority of members elected.

Special quorum requirements are sometimes fixed for votes 30 on final passage of bills or appropriation and revenue items" 31 or for local bills. Adherence to accepted parliamentary rules in states where no special quorum requirements exist raises strong doubt about the need to include a quorum provi­ sion in the constitution.

Style Limitations

There are several formal limitations frequently imposed on the legislative process; it is difficult to determine how effectively, if at all, they have helped substantive legisla­ tion. The "one-subject rule" is found in 39 state constitutions.

This rule requires that each law embrace but one subject which must be expressed in its title. The object of the provision is to prevent the inclusion of "sleepers" or "jokers" or in securing the passage of measures under the false color of its title as well as assuring separate consideration and decision.

It is usually stated that the limitation had for its purpose the prevention of logrolling, or the giving of notice of the contents of the bill, or both. In practice, logrolling is not prevented and notice is unimportant. The great quantity of

29 Maryland, Missouri, and Ohio.

3 0 Wisconsin Constitution, Art. VIII, Sec. S.

31 31New York Constitution, Art. Ill, Sec. 20. legislation produced by this requirement and the obstacle it has presented in some places against the codification of state laws or the enactment of comprehensive codes makes the inclusion of this provision highly questionable.

Other style limitations deal with the revival, amendment, and incorporation of laws by reference. The evil to be remedied is a narrow one. It has to do with drafting a reviving or amend­ ing act in such a way that one has no idea what the act is really attempting to do. The typical situation to be prevented is one in which certain words on a certain line and page of a previous act are to be stricken, or words added, or both. The limitation does not normally extend to repealing an act by title only. In jurisdictions where the courts keep the limita­ tion down to narrow and sensible limits, it has probably avoided legislators from being misled without hampering legislation.

Another style requirement commonly specified in state 32 constitutions is the stipulation of an enacting clause. This is a purely formal requirement, the terminology of which may vary. This matter can be amply provided for in legislative rules.

Procedural Limitations

Constitutional provisions regarding the house into which legislation may be introduced exist in 41 states; of these 21

32 32Except Delaware, Georgia, and Virginia. states require that revenue and money bills originate in the lower house, a carry-over from the old notion that taxation must have a basis of popular representation. The other 20 states permit legislation to be introduced in either house and

6 state constitutions are silent on this matter. The limita­ tion on introduction has proven troublesome, particularly in cases where bills having incidental revenue features are in­ troduced in the senate and then must contend with the con­ stitutional rule.

In attempting to extend the time of consideration of bills and to avoid the last-minute legislative rush, several states, through their constitutions, have undertaken to force the early introduction of bills. These limitations take several forms; an absolute prohibition against introduction during the last 33 part of the session, as the last three days, or of specific

34 types of bills. Most states attempt to deal with this prob­ lem through legislative rules. The pressures brought upon members make it difficult for them to avoid waiving the rules.

Similarly, constitutional provisions are evaded by such devices as the "skeleton" bill and the "hijacking" of another member’s

dead bill. To enforce any effective time limit on the intro­ duction of bills, provision must be made for pre-session bill

33 Arkansas and Mississippi

34 For example, appropriation bills in North Dakota cannot be introduced after the 40th day except by unanimous consent. 30 drafting which is new provided in 35 states as well as pre- session filing in effect in five states. The experience of other states would cast grave doubt as to the advisability of touching upon bill introduction limitations in the constitution.

The requirement of the repeated reading of bills aloud before legislatures is in the constitutions of more than half the states— even though it was originally needed only because many legislators could not read and because duplication methods were too slow to permit personal use and inspection of bills.

Thirteen states make no provision in their constitutions for reading of bills, but provide for them by rule.35 The treat­ ment of this subject through rules would be preferable to mean­ ingless compliance with or evasion of an anachronistic procedural requirement in the constitution.

Requirements for final passage of a law are sometimes for­ malized in state constitutions, frequently stipulating stricter requisites for adopting specific types of legislation.36 This may be applied, for example, to bills increasing the public

debt or acts going into effect immediately as urgency measures

in states where a fixed time must ordinarily elapse before laws

become effective. Of the 36 state constitutions which specify ------35 Connecticut, Delaware, Iowa, Massachusetts, Montana, New Hampshire, New York, Vermont, Washington, Wisconsin, and Wyoming require three readings; Maine and Rhode Island require two.36

For a complete Tabulation of practices in all 48 states with regard to passage majority requirements and roll call and reading requirements see Book of the States 1954-55. p. 109. the requisite majority for final passage, the greatest number

have adopted the requirement of a majority of members elected.

Four states with constitutional provisions regarding final

passage and 10 states with no constitutional provisions on this

point follow a requirement of a majority of members present and

voting.37 Indeed, the nature of final passage requirements

bear no relationship to whether they are prescribed by rule or

constitutional provision. Except for the desire to make it more

difficult to pass legislation on prescribed subjects or to meet

special emergencies, it would be reasonable to rely upon estab­

lished parliamentary practices for the final passage of laws.

Indeed more stringent majority requirements for special subject

matter or emergency legislation may operate as positive ob­

stacles to meet emergencies or special needs.

If the Alaska Constitution makes provision for executive 38 veto, it will be necessary to consider the nature of legisla­

tive action after veto in the reconsideration or repassage of

the vetoed item or bill. As shown in the following tabulation

24 of the 47 states in which veto powers are given to the gov­

ernor, a majority of two-thirds of the elected members of each

37 Two other states have no constitutional provision gov­ erning final passage: by rule West Virginia has adopted the standard of all members elected and New Hampshire requires more than a simple majority when the quorum falls below a prescribed number.

38 Veto powers are discussed in Staff Paper No. VI on The Executive Department. 32

39 house are required to override the veto. This makes the veto a very powerful legislative factor and draws a sharp distinction between enactment and repassage processes. Indeed, where a legislative majority similar to initial passage is required for repassage after veto, the governor’s action amounts to little more than an advisory statement requiring legislative recon­ sideration. The 47 states providing for a governor’s veto are distributed as follows in the requirements to override

Two-thirds of members elected . 24 states Two-thirds of members present . 11 states Three-fifths of members elected 4 states Three-fifths of members present 1 state Majority of members elected . . 6 states Majority of members present . . 1 state

In the absence of constitutional or statutory provisions, laws take effect immediately upon the completion of the pres­ cribed enactment procedure. In the 27 states where constitu­ tional provisions exist, the most common is to provide for the elapsing of a stipulated period of time, usually 90 days, after the date of passage or of adjournment.

Legislative Services

A major legislative development during the past 50 years

has been the creation and expansion of various types of permanent

staff agencies to provide state legislators with needed assist­

ance. The number and complexity of legislative problems and

39 This is also the repassage requirement in Alaska

Source: Book of the States. 1934-55. p. 103. the rapidly mounting costs of state government have led to certain institutional form in such areas of assistance ass.

1. Drafting of legislation.

2. Statutory, code, and law revision.

3. Post-audit of state fiscal operations.

4. Pre-session review of the budget.

5. Reference and research assistance on any subject of legislation. Related to this service but more comprehensive in nature is the conduct of advance studies im im­ portant subjects expected to come before future legislative sessions and the develop­ ment of recommendations for legislative action.

The oldest of the permanent service agencies are legisla­

tive reference libraries, now established in more than 40 states

Wisconsin established the first integrated agency to provide

more comprehensive services for legislators in 1901 and by 1917

more than half the states followed this lead. The reference

agencies represent a great variety in services provided and

organizational structure. A majority are sections of the state

library, state law library, or department of library and archive

Where bill-drafting is a major activity in addition to reference

services the bureau is usually independent of the library.

During the past 20 years the expansion of the legislative

council idea to more than two-thirds of the states has followed

the council in Kansas established in 1933. Legislative coun­

cils, staffed with competent research assistants, provide for two long-felt needs: they provide machinery for effective and continuing legislative participation in forming policy: and they provide means by which legislatures can obtain a sound factual basis for deliberations and decisions. As in Alaska, most of the legislative council laws adopted since 1943 provide for coordinating the legislative council and legislative refer­ ence functions and activities.

Other significant developments include law revision commis­ sions to carry on systematic studies of substantive law revi­ sion and the creation of specialized staff facilities under legislative supervision to provide continuous review of state revenues and expenditures and pre-session analysis of the budget.

The latter development has received criticism from various

quarters, including the governors of several states.

The trend during the past generation in establishing per­

manent and continuing legislative research agencies has been

s t r o n g . 41 Many states, however, still make extensive use of

specially-created interim study committees and commissions.

The Model State Constitution (Article III) goes so far as

to include provisions setting forth the nature, organization,

duties, and compensation of a legislative council, and permits

the delegation of authority to -the legislative council to

41 For a summary of permanent state legislative service agencies, see Book of the States. 1954-35. Table 1, pp. 122-127. approve or disapprove general orders, rules and regulations state officers, departments, offices, and agencies which are necessary to supplement existing legislation. The inclusion of these provisions seemsimproper on several counts;

1. Because of the variety and scope of exist­ ing and unknown future legislative needs for supporting research and other assist­ ance, it is not desirable to fix the struc­ ture, duties, and other details of a legis­ lative council in the constitution. Admit­ tedly, the legislative council device is desirable and necessary— but it is not the only possible pattern of providing legisla­ tive supporting services and like similarly modern and sound ideas on the internal organi­ zation and administration of the court system, department of finance, or the governor’s office, it does not require constitutional reference or elaboration.

2. The delegation of power to the legislative council to approve or disapprove general orders, rules, and other actions carried out by executive or administrative agencies raises several potential dangers;

a. Interference, uncertainty, and confusion in executive services.

b. A tendency on the part of the leg­ islature to fail to provide sound legislative guides and standards for the conduct of executive programs which require rule-making authority and limit­ ed discretion for successful attainment of legislative objectives because of reliance on the council’s "w a t c h d o g " role. 36

Lobbying;

A special problem is raised by the nature of relationships which develop between legislators and special interest groups or their representatives. In one sense, a lobbyist is a legis­ lative service agency in that he often makes available to the legislature information and material to attain or defeat legis­ lative action. Fearing an unbalanced influence of small, finan­ cially strong, special interest groups on legislators 20 states include provisions against lobbying or corrupt solicitation in their constitutions. In another 12 states the regulation of lobbying is based on statutory law. The most common methods employed are the registration of lobbyists and the filing of expense statements by lobbyists. Other types of regulation

include the restriction of appearances to committee meetings

or to public addresses and newspaper publications; the filing

and publication of statements or briefs by lobbyists prior to

presentation before the legislature or its committees; and the

prohibition against the employment of lobbyists on a contingency

fee arrangement, where compensation is based on the success or

failure in obtaining desired legislative action. Most observers

believe that existing state regulation of lobbying is ineffect­

ive, and ascribe this to lax enforcement and to the failure of

legislatures to deal vigorously with lobbyists, having enacted

only sufficient regulation to satisfy public opinion. 4 2

4 2 For a summary of the regulation of lobbying by the states, see Book of the States. 1954-55. pp. 132-133. 37

The most effective defense against corrupt and unbalanced lobbying is a legislature that is able to perform its work efficiently, without unnecessary delays, and upon the basis of sound information and data derived from a wide variety of inter­ ests as well as its own supporting research staff. Legislatures which are hamstrung by archaic restrictions and procedures, poorly organized, or unrepresentative are the ideal breeding grounds for bribery, corruption, and the disproportionate influence of small selfish interests over those of the people of the state.

General Comments

In drafting the legislative article, delegates will have to arrive at a basic political decisions To what extent are legislative representatives to be permitted to exercise the sovereign powers of the people? This question is partially answered by the traditional allocation of powers between the

Federal and state governments and judicial interpretations of them, so that the state legislature becomes partially limited in exercising powers by the act of statehood. Then too, the principle of the separation of powers, which will undoubtedly find its way into the Alaska Constitution, serves as a second

substantial limitation on the legislature’s sphere of action.

As far back as the Founding Fathers the greater potentiality

of the legislative branch to interfere with and usurp powers 33 of the other departments was realized by virtue of their de­ pendence upon the legislature and the indirect and devious means at its disposal in the conduct of the legislative process. Hence, the relationships between the three branches must be carefully defined and correlated in the legislative, executive, and judi­ cial articles. The Alaska Bill of Rights will put further limitations on the legislature in its relationships with indiv­

idual as well as property rights. Thus, even before we start

to consider the legislature and legislative process per se.

we find this body encased from above by federal powers and safe­

guards, on two sides by the executive and judiciary, and from

below by individual and property liberties and rights. Yet,

from our examination of the current provisions for American

state legislatures, we find an alarming array of further limit­

ations, restrictions, and ritualistic requirements imposed on

this body of already limited powers. Somehow the legislature

still retained access to the people’s purse, an oversight quickly

rectified in many states by elaborate limitations on the rate

at which the purse’s contents could be tapped by setting rigid

tax and debt limits in the constitution. Notwithstanding, the

legislature could still decide, within rather broad limits,

how the public money was to be spent. This oversight was rather

effectively taken care of in many states by the dedication of

revenue, which has been carried in some states as far as 75 to 90 per cent of the state’s revenues. This device, initiated as a safeguard to provide financial underpinnings for programs which legislators were not trusted to provide, soon became some­ thing of a legislative opiate. The legislators soon discovered that it was far easier to obtain additional taxes by "bargain­ ing” with certain groups to provide specific, usually benefitt- ing, services for them with "their" money. Hence, shortsighted

or overly-cautious legislators have carried this practice

further, thereby further abdicating their powers and

responsibilities.

The general conduct of the states regarding the control

of legislative tenure, organization, and procedure is equally

restrictive. Common restrictions include when the legislature

shall meet, for how long it shall meet, and with respect to

special sessions, what it shall consider. Who shall be eligible

for membership in terms of age, residence, and background is

usually stipulated. At the same time strictly defined require­

ments and limitations are prescribed for legislative procedure

and style. Indeed, one can conclude that the cumulative or

average approach to legislative articles in state constitutions

has been premised on a presumption of mischief, corruption, or

stupidity without realizing that each safeguard in some manner,

great or small, also reduces the legislature’s power to act for

the common good. The approach urged upon Alaskan delegates for use in the formulation of this and other articles is to seek out the greater good rather than the lesser evil.

With respect to limitations on style and procedure, Ernst

Freund observed almost 40 years ago that while style require­ ments have had some "beneficial effects upon legislative prac­ tice" on the reverse side "they have given rise to an enormous amount of litigation; they have led to the nullification of beneficial statutes; they embarrass draftsmen, and through an excess of caution they induce undesirable practices, especially in the prolixity of titles, the latter again multiplying the risks of defect." Freund goes on to say:

" T h e sound policy of constitution making is to impose procedural requirements only under the following conditions; (1) that they serve an object of vital importance; (2) that they can be complied with without unduly impeding business; (3) that they are not susceptible of evasion by purely formal compliance or by false journal en­ tries; (4) that they do not raise difficult ques­ tions of construction; (5) that the fact of com­ pliance or non-compliance can be readily ascer­ tained by an inspection of the journal. The application of these tests would lead to the discarding of most of the existing provisions without any detriment to legislation, as is proved by the experience of states which never adopted them.”43

-000-

43 Freund, Ernst, Standards of American Legislation. University of Chicago Press, 1917, pp. 154 ff. VI

THE EXECUTIVE DEPARTMENT

A staff paper prepared by Public Administration

Service for the Delegates to the Alaska

Constitutional Convention

November, 1955 „r.--

TABLE OF CONTENTS

The Executive Department 1

The Governorship 3

Qualifications 4

Terms and Succession 5

Compensation 6

Vacancies 6

Impeachment and Recall 7

The Governor as Chief Executive 8

Provisions of other States 10

Convention Considerations Regarding Executive Branch 12

The Governor’s Relations with the Legislature 14

The Introduction of Legislation 15

The Veto Power 16

The Governor’s Other Specific Powers 18

Pardoning Power 19

Military Powers 20

External Relations 21 THE EXECUTIVE DEPARTMENT

Alexander Hamilton admonished in The Federalist that

"Energy in the Executive is a leading character in the defini­ tion of good government .... The ingredients which constitute energy in the Executive are, first, unity; secondly, duration;

thirdly, an adequate provision for its support; fourthly, com­

petent powers." In the teeth of this advice, early state con­

stitutions seemed intent on the neutralization of the executive;

indeed a practice which in its pathetic extreme was typified

by the remark of William Cooper when he returned home from the

North Carolina Convention and was asked how much power they had

given the governor, he answered; "Just enough to sign the

receipt for his salary."1 In view of the fact that early state

governors were essentially successors of strong governors who

were appointed by the Crown or proprietors and who often exer­

cised supreme judicial and absolute veto powers, the popular

repugnance to executive authority was perhaps a natural expecta­

tion. For more than a century after 1776 the erosion of the

executive power continued under the tides of popular distrust, — ------

Reported by Leslie Lipson in his book, The American Governor From Figurehead to Leader. (Chicago, 1939) p. 14. 2 legislative jealousy, and laissez faire interests. The executive had been contained— he was too weak to tyrannize, but he was not strong enough to serve. It was not until the Twentieth

Century that a new premise became apparent. Some constitutional conventions began to realize that democracy requires institu­

tions that are strong enough to govern. Inside the executive

branch this principle was applied by enhancing the political

power of the governor and making him a chief executive in fact

as well as in name, thus completing a cycle back to Hamilton’s

initial "ingredients of energy in the Executive" of "unity",

"duration", adequate "support", and "competent powers" .

Alaska, in relinquishing territorial status, finds itself

in a position somewhat comparable to that of the original states

in the transition from a governor appointed by superior political

power to a locally chosen one. In providing for the chief

executive of the State of Alaska, the Delegates must make basic

determinations about the nature and scope of powers and respon­

sibilities to be given him. The political history of the Ameri-

:an states is rich in ingenious devices and errors in fashioning

executive powers. Today, the question is not so much one as to

whether the governor should be a weak or strong one, but what

combination of powers and limitations should be arrived at to

enable him to direct and execute state programs. This task can

be approached as the containment of real or imagined mischief or as the release of power and capacity to serve the public good. Experience has shown the folly of the exclusive use of the former premise.

The Governorship

There are certain traditional patterns that have been adop­ ted by the American states despite variations in details. All states have as their chief executive a popularly elected gover­ nor whose term is either two or four years. The governor’s executive duties are customarily to oversee the faithful execu­ tion of the laws; to grant pardons, commutations, and reprieves, normally excepting treason and impeachment cases; to serve as commander-in-chief of the militia and to grant commissions in the name of the state; and to represent the state in its deal­

ings with other states and with the federal government. In

his relations with the legislature, the governor generally re­

ports on the condition of the state and recommends desirable

legislation, signs or disapproves of measures passed by the

legislature, and may adjourn the legislature when the two houses

cannot agree upon adjournment. Normally the governor is empow­

ered to convene the legislature for special sessions whenever

he deems this necessary. The powers and duties of the governor

as chief administrator of the state are subject to wide varia-

tions which will be commented upon in the course of this paper. Qualifications

Presumably to assure maturity, sufficient concern with and interest in the affairs of the state, and in many cases to exclude naturalized or new residents, many state constitutions provide qualification requirements of minimum age, citizenship, and residence. Almost two-thirds of the states require a 2 minimum age of 30 years. United States citizenship is also required in two-thirds of the states, some states stipulating the duration of this citizenship which ranges from 5 to 20 years prior to candidacy. About one-half of the states also stipulate state residence requirements which range from one to ten years. About one-third of the states also prohibit the governor from holding another office in the state, a federal office, and a position under a foreign power or another state.

In all states the governor is elected by popular vote. In most states the candidate receiving the highest number of votes is elected, even if that is less than the majority of the total vote. Under the two-party system, plurality elections usually give the same results as a majority requirement. But with three or more candidates, the election might go to one receiving less than an absolute majority, and a few states have special provisions for such a contingency.3 ------2 Eight states allow a qualified elector thereby setting the minimum age at 21; four states require 25 years of age; and Oklahoma requires a minimum of 31 years.

3 In Maine, Massachusetts, New Hampshire, and Georgia an absolute majority is required; and if no candidate receives this majority, the election is decided by the legislature on joint bal- lot. The Mississippi Constitution has a peculiar provision for the election of the governor under which a majority of both the popular vote and electoral votes assigned to counties or legis­ lative districts is required. Terms and Succession

Governors are now elected in most states for a term of two or four years, about half of the states in each class. The states have been following a desirable tendency to lengthen the governor’s term to four years.4 It is generally considered advisable to provide a four-year period during which the gover­ nor has an opportunity to develop his policy leadership out of his experience. However, in 16 of the four-year term states, constitutions prohibit a second consecutive term. Under this arrangement the influence of the governor tends to decline as the term progresses. It has become increasingly apparent that if the governor is to have at least one term of full political power, he must not be prohibited from succeeding himself. In a broader sense, such limitations contain the potential of de­ priving the people of the state from endorsing by reelection an acceptable and experienced man who has substantially but

not totally executed desirable programs and services.

In fifteen states which elect governors on a quadrennial

basis gubernatorial elections do not coincide with presidential

4 Within recent years Connecticut, Idaho, and New Jersey have adopted the four year term, bringing the total to 29 stat e s In addition, both the Hawaii and Puerto Rico constitutions pro­ vide for a four year term, as does the Model State Constitution.

5 In eight states two successive terms are permitted or the governor is permitted to serve only a specified number of years during a prescribed period. No limitation upon succession exists in 29 states. elections. This is intended to permit the focus of attention on state issues; but unfortunately, because of the relatively greater popular interest in presidential elections, frequently a fewer number of votes are cast in the gubernatorial contests.

Compensation

Mention of a specific salary for the governor is made in only six state constitutions; in two of these the constitutional provision is essentially a stipulation as to the governor's maximum pay which the salary-fixing authority of the legislature

cannot exceed. The establishment of the governor's salary is

properly a legislative rather than a constitutional determina­

tion. In order to protect the executive from unreasonable dom­

ination by the legislature, the constitution probably should

contain a provision that no legislature may reduce the salary

of the incumbent governor.

Vacancies

All state constitutions include a provision for establish­

ing succession in case of vacancy in the office of the governor

by reason of death, resignation, impeachment, or other cause.

The most common provision, obtaining in 37 states, names a

lieutenant governor as the first successor to the office of the

governor.6 In the states without a lieutenant governor, eight

provide for succession by the president of the senate and three

6 In 35 of these states the lieutenant governor also acts as president of the senate. states designate the secretary of state. Thus in the typical state, the first successor would be the lieutenant governor, followed by the presiding officer of the senate. The secretary of state and speaker of the house are the others who figure prominently in the line of succession. The provisions of the

New Jersey Constitution seem to cover all contingencies: no lieutenant governor is provided but succession is traced to the president of the senate, then to the speaker of the house, after which succession may be provided by law. In the event of a vacancy, provision is made for the election of a governor at the next general election to serve during the unexpired term.

If the governor does not perform his duties through inability or other reason, the legislature upon two-thirds vote in each house may appeal to the state supreme court to declare the office vacant. (Art. V, Sec. I)

Impeachment and Recall

All the state constitutions except that of Oregon provide for impeachment proceedings for removal from the office of the governor and other executive officers, and a fourth of the states provide for his recall. In nearly all states impeachment charges are brought by the house and tried by the senate. In several states provision is made for the referral of the case to the state supreme court or the sitting of the court with one of

7 Twenty states name three successors; five states go beyond this number, Washington being the highest with seven named successors. the chambers. In some states no specific grounds for impeach­ ment are stated; but in most states high crimes, misdemeanors and malfeasance in office are named. In most states a majority vote of the house of representatives is sufficientto impeach, but in some states a two-thirds vote is required.For convic- tion a two-thirds vote of the senate is the usual provision.

Recall is discussed in Staff Paper Mo. XII on Initiative.

Referendum, and Recall. Impeachment and recall are cumbersome methods, which can be used only in aggravated cases; and even when attempted, they are seldom effective. The Model State

Constitution includes a provision for the removal of the gov­ ernor by a two-thirds vote of all members elected to the legis­

lature without the formalities of impeachment proceedings.

The legislature has the related necessary power of convening

on its own initiative.

The Governor as Chief Executive

All of the recently drafted and many of the older constitu­

tions contain a provision vesting the executive authority of

the state or commonwealth in the governor. In order to give

meaning to this vesting of authority and responsibility, the

constitution ..should; ^ 1. Refrain from specifically creating any executive departments or positions except that of the governor. 2. Provide that any executive departments thereafter created by law shall be res­ ponsible to and subject to the direction of the governor.

3. Vest in the governor the power to appoint ' department heads to serve at his pleasure.

Item 1, above, meets squarely the problem of constitution­ ally created departments, such as exist in many states, and which hamstring efforts at reorganization to achieve greater efficiency or to meet modern administrative needs. It also results in the "s h o r t " ballot, with only the governor to be elected, a desirable feature that meets almost universal approval.

Some recent constitutions, while not specifying organiza­ tion of the executive branch, include a limitation on the number of executive departments (e.g., 20 in New Jersey and Hawaii) there seems to be no magic number (is 20 better than 18 or 22?) and discretion on this point is better left to the legislature.

The second item above provides for unity in the executive branch and for the ultimate responsibility of the governor.

The third item, assigning the governor full appointive and removal power, carries to a rational climax the objectives set by the first two items. It will be contended by many that the governor’s appointment and removal power should be subject to confirmation in each case by the legislature or by at least the upper house thereof. Recurring experiences in many states, however, including those with recently adopted constitutions, 10 indicate that requirements for legislative or senate confirma­ tion can lead to confusion and delay, can serve to dilute the separation of powers doctrine, and can encourage undesirable politicking of administrative department heads.

Provisions of Other States

In most other states the governor does not have the unlimit­ 8 ed discretion in appointments recommended here. Concurrence of one or even both houses of the legislature often is required.

Occasionally he must make his selections from panels submitted by interest groups or professional organizations. Although the theory of concentration of authority and responsibility in the governor would dictate that when officials are chosen by him, they should serve at his pleasure, the governor does not have

such unlimited power of removal in most states. Most constitu­ tions are extremely vague on the subject, a situation which

has often led to controversy and legal action. The most liberal

in this respect is the Missouri Constitution of 19.45“ Article

IV, Sec. 17 says that "a l l appointive officers may be removed

by the governor." In the Mew Jersey Constitution the governor

may remove single department heads, all of whom he appoints,

but plural departments heads "m a y be removed in the manner pro­

vided by law" (Art. V, Sec. 4).

8 For a summary of the appointing powers of state gover­ nors, see Book of the States 1954-55. pp. 159-161. 11

In the absence of a general removal power over his appointee the governor's authority of removal, if any, depends upon the statutes under which the various agencies are established.

These provisions vary widely from state to state and from agency to agency.9 A number of states through administrative reorgani­ zation statutes are providing the chief executive with greater appointive and removal discretion. Kentucky and Pennsylvania are notable examples.

In summary, it may be noted that only two states give the governor broad removal powers. In the remainder he must "s h o w cause", a difficult course of removal which adds little to the governor’s real authority over his appointees, since administra­ tive incompetence and obstructionism are difficult charges to prove. The limited removal power of the governor is one of the

chief causes of his inability to control state administration.

Lacking any effective means of getting rid of inefficient or

disloyal subordinates, he must necessarily accept their half­

hearted service.

The conclusion seems justified that the governor’s lack

of clear authority over administrative officials is a serious

9 Reorganizing State Government. Council of State Govern­ ments, ("Chicago, 1950) reports on page 2 6 : "B r i e f inspection of the statutes of several states indicates that somewhat less than half (perhaps about 3O% of the appointive officers and commissioners in the states serve at the governor’s pleasure. These are usually the minor officers. The rest serve for specific terms. About half of the specific-term officers may be removed "for cause," and for the rest no provision at all is made for removal. impediment to effective administration and unity of management.

As one observer commented upon the administrative limitations imposed on the governor of his state: " . . . his duties . . .

seem more like those of an observer than of a chief executive."

Convention Considerations Regarding Executive Branch

In the Convention at College there will undoubtedly be

considerable and sustained pressure to set aside a particular

agency from the governor’s control (and thus, it is claimed,

to free it from "politics"); to designate an agency or a func­

tion which will not only be free from gubernatorial direction

but also from legislative policy control through the device of

constitutionally dedicated revenues; or to insist that legisla­

tive control demands that, in addition to legislation, appropria-

tions, and legislative audit, such control demands appointment

confirmation.

The proponents of such measures should be reminded that

other and more adequate safeguards of the expression of popular

and legislative intent are available, including in addition to

those already mentioned, the responsibility and accountability

of political parties; that arguments for separate and special

treatment of education, or fisheries, or veterans, or any other

function, subject, or group applies equally to all governmental

responsibilities; and that the virtues of a constitution re­

stricted to basic law and favoring no group or interest over 13 any other are overwhelming and in the case of a potential new state, the only wise and practical course.

Pressure for constitutionally embedded fragmentation of the state executive branch exists in many states and derives from many sources, of which the following were reported by the 1C American Assembly in 1955

1. The ’’normal'* drive for agency autonomy or an almost innate characteristic of administrative agencies to desire independence.

A historical background of separate responsibility to the electorate which may have had its origin in a ’’re f o r m ” movement for a special function or as a popular repugnance against a scandal in an established service. The appeal of "direct responsibility to the people" is difficult to overcome.

The attitude of clientele and Interest groups and the often closely related and mutually re­ inforcing factor of professionalism. Each in­ terest group, identifying the public interest with its own, feels that its affairs are prop­ erly considered by keeping the agency and funds involved "independent"--meaning independent of everyone but the particular interest concerned. The politics of the ballot-box are substituted by the politics of special influence, often but not always with the highest motives. Profes­ sionalization, as a force for fragmentation of state services, is often closely linked to the pressures of special clientele groups.

Functional links to the national government, or the tendency of a lower level of government t o adjust its organization to mirror the larger p o l i t i c a l unit. T h is tendency is probably most 3 t r o n g l y felt at the state level as the result o f Federal grant-in-aid programs and requirements

10 The Forty Eight Sta t e s : Their Tasks as Policy Makers and Administrators. The American Assembly, Columbia University. 19 5 5 , PP. 115-ll8. 5. The desire to insulate special types of programs or the belief that certain kinds of programs should be in some measure removed from political policy and processes. Regulatory, experimental, and trade promotional agencies have often been provided with insulation or exemption from central controls and policies.

6. Political division between the governor and the legislature has frequently expressed itself in the establishment of administrative agencies which were placed under legislative control or, as a minimum, beyond any effective control of the governor.

The Delegates at College need to be aware of these possible risks to an orderly and responsible executive department. Theirs is the challenge and opportunity to excel any constitutional draft to date on this point.

The Governor's Relations with the Legislature

In contrast to the divergent position of the governor among the American states as chief administrator, his relations to the legislature are found to be somewhat more uniform. Indeed in many states the governor's powers over legislation are more comprehensive than his control over executive administration.

This is largely attributable to the historical need on the part of early American constitution drafters to reconcile the separa­ tion of powers doctrine with the British parliamentary practice

in which the executive played a continuing part in the legisla­ tive process and was drawn from legislative ranks. In very

early American state constitutions, the legislatures appointed

or elected governors; but as the practice of popularly elected 15 governors gained ground, the likelihood of friction or open conflict between the governor and the legislature increased.

Hence executive-legislative relations stand today among some of the more important basic political problems of our entire system of American government. In the traditional pattern of state government the governor exercises influence over the legislative process in three basic ways:

1. As an initiator of legislation through messages, reports, and the executive budget.

The power to call special sessions and often to prescribe the subjects to be discussed at them, as well as the power to adjourn sessions under certain circumstances.

3. Through the exercise of the veto power.

The Introduction of Legislation

The governor normally has no control over the composition

and election of the legislature, except in some instances where

he is given power to call special elections to fill vacancies.

The time for the beginning of legislative sessions is usually

prescribed; and the time of adjournment is usually fixed by

the legislature itself unless there is a constitutionally speci­

fied duration which it cannot exceed. But, if within this time,

the legislature cannot agree on adjournment, the governor is

often given power to adjourn the session. Typically, the gov-

ernor has power to call special sessions and is usually given

power to change the place of meeting in case of danger from 16 disease or the presence of an enemy. At special sessions the governor's influence on legislation is strengthened. In about half of the states, legislation at such sessions is limited to the subjects named by the governor; and in any case, attention is concentrated on the subjects so stipulated.

It is normally made a constitutional duty of the governor to give the legislature information as to the condition of the

state and to recommend such measures as he deems expedient and necessary. This is usually done by means of oral or written messages at the beginning of each regular and special session, and by messages from time to time on particular subjects. The governor’s recommendations to the legislature do not constitute formal introduction of the measures, but bills will usually be

introduced on the subjects proposed. Increasingly, provisions

for the submittal of an executive budget specify or imply the accompaniment of necessary draft legislation to provide for the legal and financial bases of the budget program.

The Veto Power

At the final stage of legislation the governor has an im­ portant negative voice, in the power of disapproving a bill

passed by the legislature. In three-fourths of the states bills disapproved by the governor become law only if passed by two- thirds of each house— in most cases two-thirds of all the elected members. The scope of the veto power varies in the 17 several states: in half the states it is authorized only for legislative bills; in the other states joint resolutions are included; and in most of them also other votes and orders of

both houses, but usually with certain exceptions such as resolu­ tions of adjournment and questions of procedure. In a few states

proposed constitutional amendments are expressly excepted; and

many courts have held that such proposals are not subject to

the governor’s action, even if not specifically excepted.

In three-fourths of the states the governor’s veto power

has been further increased by authorizing him to disapprove

separate items in appropriation bills; and in some states this

has been construed to authorize the reduction of items. The

item veto has been broadened in a few states where the governor

may veto any section of a bill as well as the emergency clause

of a bill if one is provided. The governor can also be specifi­

cally authorized to propose amendments to bills.

The time given the governor for the consideration of bills

varies rather widely. During the legislative session, the time

given to the governor to consider bills is only three days in

about one-fifth of the states; it is five or six days in slightly

more than half the states; and ten days in the remaining one-

fourth of the states, the latter group including most of the

larger states. After the adjournment of the session, about

three-fourths of the state constitutions provide for a definite period to act on a bill which range from three days in

Minnesota to 30 days in seven states. The New Jersey Constitu­ tion of 1947 gives the governor 10 days to consider bills while the legislature is in session and 45 days after an adjournment sine die. The pocket veto is eliminated by a provision that if the governor vetoes a bill after adjournment, the legislature reconvenes in special session to reconsider the bill and any amendments which the governor cares to offer. If the bill is amended and reenacted, the governor has ten more days in which to consider, but no bill may be returned a second time. The same provisions apply to the item veto. This procedure has several desirable characteristics in that it is designed to carry through to enactment legislation surrounding which there may be considerable executive-legislative disagreement. By

the elimination of the pocket veto, the governor is forced to

take a public stand for or against each bill. He cannot evade

his responsibility nor can the legislature which must consider

all vetoes.

The Governor's Other Specific Powers

In addition to his general authority as chief executive

and his powers in relation to the legislature, state constitu­

tions confer certain other specific powers on the governors.

These include the power to grant pardons to persons convicted

of crimes and to act as commander-in-chief of the state milit­

ary forces. In addition he exercises authority in the conduct of external relations which stems from provisions of the U. S.

Constitution, legislative enactments, or the governor’s own initiative.

Pardoning Power

All but three states give the governor the power, with various limitations, to pardon after conviction. The most com­ mon constitutional provision provides that pardons may be granted only after conviction, and except impeachment cases; while many constitutions also except cases of treason, and Vermont further excepts murder cases. Over a third of the governors must share the power to pardon with some other agency, such as a board, an executive council, or in the case of two states the governor may pardon only with the advice and consent of the senate. The general power of pardon may be exercised so as to grant absolute, limited or conditional pardons.

A number of state constitutions have express provisions as to reprieves, commutations, and the remission of fines and forfeitures. The powers of reprieve and of commutation usually except impeachment and treason cases, and in a limited number

of states there are specific procedural requirements or these

powers are subject to regulation by law . The power to remit

fines and forfeitures is not so commonly vested by constitu-

tions as is executive clemency. About a third of the states

give this power to remit fines to the governor and in another

fourth of the states the power is subject to the regulation " -

of the legislature. In most of the remaining states the gov­ ernor has no constitutional authority to remit fines and for­ feitures.

Military Powers

Most state constitutions provide that the governor shall be commander-in-chief of the military forces of the state.

This power in ordinary times applies to the organized militia, which are called into active service to meet special emergencies,

About half of the states qualify this power by the clause "ex­ cept when they are in the service of the United States"; and

several provide that the governor shall not command in person without the consent of the legislature, an unwarranted limita­ tion in view of the usual emergency nature of the exercise of

this power. As commander-in-chief, the governor has the power

to call out the militia to execute the laws, to suppress in­

surrections, and to repel invasion. In some states this usual

provision is limited to specified purposes; in others it has

been found necessary to extend it to other purposes as to pre­

serve the public peace or (in Oklahoma) to protect the public

health. In view of the unpredictable form in which disasters

and emergencies can occur, undue procedural or purpose restric­

tions might prove exceedingly harmful. External Relations

The governor normally acts as the general agent of the state in relations with the Federal Government and with other states. Under the U. S. Constitution he may (when the legisla­ ture is not in session) apply for national aid to protect the state against domestic violence. He issues certificates of election to members of Congress, and certifies the action of the state legislature on proposed amendments to the U. S. Con­ stitution.

In many other matters of interstate relations, the gov­ ernor represents the state, either on his own initiative or on the authority of the legislature. Thus he may institute legal proceedings in the name of the state or authorize the defense of suits brought against the state.

-000- VII

THE JUDICIAL DEPARTMENT

A staff paper prepared by Public Administration

Service for the Delegates to the Alaska

Constitutional Convention

November, 1955 TABLE OF CONTENTS

The Judicial Department 1

Constitutional Provisions on the Organization of the Judicial System 3

The Structure of the Judicial System 3 The Supreme Court 8 Lower Appellate Courts 10 Trial Courts of General Jurisdiction 11 Local Courts of Limited Jurisdiction 12 The Problem of Special Courts 14 Summary 15

Constitutional Provisions on Court Strucutre 15

Jurisdiction of Courts 19

Constitutional Provisions on Judicial Personnel 22

Provisions on the Qualifications of Judges 23

Elective versus Appointive Judges 24

Recently developed Methods of Selecting Judges 27 The Missouri Plan 28 The California Plan 29 The Model State Constitution Provisions 30 The Mew Jersey and Hawaii Examples 30 Summary of Selection Methods 31

Provisions on the Tenure of Judges 31

Provisions on Salaries and Retirement of Judges 33

Provisions on the Removal of Judges 35

Summary of Provisions on Judicial Personnel 38

Constitutional Provisions on Judicial Administration 39

Rules of Practice and Procedure 40

An Administrative Office for the Courts 45

The Judicial Council 50

Summary of Provisions on Judicial Administration 52 THE JUDICIAL DEPARTMENT

Delegates to the Alaskan Constitutional Convention are well aware of a general dissatisfaction with the present system of the administration of justice in the Territory of Alaska.

Unlike Hawaii, which has been able to create its own system of territorial courts, Alaska still operates under a judicial system

imposed on it by the federal government. The machinery which was created for a less populous area and for a time when case

load was not so great is no longer adequate for the needs of

the Territory. That machinery, moreover, offers comparatively

little which would be satisfactory by way of a model for judicial

machinery for the State of Alaska.

That such is the case implies no criticism of present or

past occupants of judicial posts in the Territory of Alaska.

Many of these persons have been and are dedicated to their jobs.

Many have performed courageously under the trying conditions of

overwork, weather, and geography. The patchwork quilt of the

Territorial judicial system is, however,proving more inadequate

each year to meet the demands of a growing and thriving area.

Geography and the comparative isolation of many smaller cornmuni-

ties poses a problem in judicial structure and administration

almost unique to the Territory, and to the future State, of Alas ■

2

The issue of what principles and concepts should be embodied in the Alaska Constitution so far as the Judiciary Article is concerned can be best discussed in terms of three basic questions;

(1) What constitutional provisions should be made in reference to the organization of the court system? (2) What constitutional provisions should be made in reference to the personnel who will man the system? (3) What constitutional provisions may be needed relative to the administration of the court system which is created? It is the purpose of this Staff Paper to outline gen­ erally the practice of the various states on each of these three major questions and to summarize the results of various studies which have been made relative to state court organization, per­ sonnel, and administration.

In discussing most of the problems of government, there is a considerable variance of opinion between practitioners and theorists. This difference of opinion is probably smaller in the area of the judiciary than in any of the others. There is no other area where the variation of opinion is less, where the gap between theory and practice is smaller, than in the conclu­

sions which have been reached by both theorist and practitioner

is prescribing remedies for the defects of state judicial systems.

Judges, practicing attorneys, laymen, and legal theorists who have

studied the problems of the administration of justice in the

United States show a startling unanimity of opinion in their

prescriptions for correcting the ills of the judicial system. The fact that practitioner and legal theorist have reached generally similar conclusions has not, however, resulted in any

considerable number of changes in state practice. The full weigh

of the American Bar Association, for example, has been thrown

behind a number of suggested court reform proposals, yet these

proposals have, for the most part, languished without implementa-

tion by the appropriate political agencies of government. "What

ought to be" and "what is" are still in most states very differ­

ent things.

Constitutional Provisions on the Organization of the Judicial System

In the organization of a state judicial system there are

two fundamentally related problems. The first is concerned with

the structure of the judicial system, that is, the arrangement

of the various courts which make up the system and their relation

ship to each other. The second problem, which is not separable

from the first, is that of the jurisdiction of the various ele­

ments which make up the state judicial system. Jurisdiction for

the purpose of this Staff Paper may be defined as the power which|

a court has to hear and decide, or to review, a case or contro­

versy presented to it.

The Structure of the Judicial System

State court systems today have the basis of their mechanical

setup in both constitutional and statutory provisions. Character-

istically, the amount of detail found in state constitutions on court structure is very great. It is a matter of no small sig­ nificance that practically all of the moves for constitutional revision in recent years have been preceded by attempts to amend the judicial article of state constitutions. Failing to change archaic and outdated court machinery by amendment, these groups have then espoused the cause of over-all constitutional revision.

While the court systems have varied greatly in structural detail from state to state, there has been a considerable uni­ formity on one point; the judicial articles have been highly detailed. Provision is made in every state for a supreme court or a court of similar position called by another name. Thus the highest court of New York is denominated the Court of Appeals.

A lower level or levels of courts is then created constitutionally.

In about two-thirds of the states this is a trial court level; in about one-third of the states lower level appellate courts, designed to ease the appellate burden of the high court, have been established in addition to the trial courts. Most state constitutions specify the number, type, jurisdiction, and even the geographical boundaries of the various lower levels of courts thus created. In addition to the trial courts of general juris­

diction and the intermediate appellate level courts, where the

latter are established, the constitutions of the states often

mention the county courts and declare them to be agencies prim­

arily of probate and limited criminal and civil jurisdiction. Even the number and method of selection of county judges is

frequently constitutionally ordained. There are even state con­

stitutions that spell out in detail the structure of courts at

the lowest level— the justice of the peace courts and the various

municipal courts.1

The result of such attention to judicial detail in constitu­

tional documents is precisely what could and should have easily

been anticipated. With the growth of population, shifts in

economic base, and industrial and agricultural expansion, most

states have found their judicial articles outmoded almost before

the ink was dry on the document which created the machinery.

Of necessity, constitutions have been amended again and again

to provide new trial courts and additional judges of general

jurisdiction for areas of a state which have grown in popula­

tion. Having written the details of jurisdiction and machinery

into the constitution, creation of new and special courts designe

to handle specific problems, e.g., juvenile courts, domestic

relations courts, and the like, is frequently the only recourse

which an harrassed legislature can take. And even these

special courts often find their way into many constitutions

through the handy device of constitutional amendment. Make­

shift is piled upon makeshift and the process is still being

compounded in numerous states. ------E.g., Maryland Const., Art. IV, secs. 17-43. The resulting crazy-quilt patchwork of courts almost defies diagrammatic description. Overlapping jurisdiction, lack of uniformity, poorly qualified personnel, timewasting and archaic procedure— these and other faults can be traced directly to the overly detailed judicial provisions in state constitutions.

The final result has been, of course, the administration of something less than justice in many state courts.

Students of the American system of courts have been aware of these defects for years. Again and again they have emphasized the role played by detailed constitutional provisions in the crea­ tion of these defects. With judicial machinery set out in detail in constitutions so that change can be accomplished only by arduous and time-consuming process of constitutional amendment, little flexibility is possible.

In the drafting of constitutional provisions dealing with the organization of the Alaskan judicial system, the delegates will wish to keep in mind the general principles laid down by the eminent Dean Roscoe Pound, acknowledged authority in the field of judicial organization and administration. In 1941, in addressing the Junior Bar Section of the New Jersey Bar

Association, he said.

In . . . simplifying the organization of courts, the controlling ideas should be unification, flexibility, conservation of judicial power and responsibility. Unification is called for in order to concentrate the machinery of justice upon its tasks. Flexibility is called for to enable it to meet speedily and efficiently 7

the continually varying demands made upon it. Respon­ sibility is called for in order that some one may al­ ways be held and clearly stand out as the official to be held if the judicial organization is not functioning the most efficiently that the law and the nature of its tasks permit. Conservation of judicial power is a sine qua non of efficiency under the circumstances of the time. There are so many demands pressing upon our state governments for expenditures of public money that so costly a mechanism as the system of courts cannot justify needless and expensive duplications and archaic business methods.2

While Dean Pound was laying down his four criteria primarily as yardsticks for judicial reorganization of state court systems already in existence, they have equal or greater applicability in the Alaskan situation where a judicial machinery must be created de novo.

Unification may be defined as the integration of all the

levels of courts of the state system into one overall and cohe­

sive administrative unit. Ordinarily such unification would not

include courts at the municipal level, but the concept of unifi­

cation is broad enough to effect that inclusion if such a policy

is desired. The result is a simplified system which provides a

rational basis for economical and efficient administration. Of

greater importance, the principle of unification eliminates the

jurisdictional controversies now so common in the courts of the

majority of the states. By flexibility is meant the power to

assign judges to courts and divisions of courts on the basis

2

ft:

,-a

Reprinted in State of New Jersey, Constitutional Con­ vention of 1947. II, 15S7. usually the governor in most states where such a power is lodged in the Court, who may request such opinions.

The number of judges necessary for such an Alaskan high court is a matter for argument and depends on a number of factors.

If the judges of such a court are to do only high court work, and are not to spend any portion of their time in "riding circuit" and serving part-time as lower court judges, then such a Court in the early years of statehood can be small. A somewhat larger court would be necessary if the judges were required, at least in the first few years of statehood, to serve a portion of each year as trial court judges. The amount of appellate work immed­ iately after statehood would be small, but a considerable increase| in case load could logically be expected within a few years.

The practice of most states has been to set the number of supreme court judges in the constitution, thus making an increase impossible when work load has grown, except by resort to amend­ ment. The Oklahoma Constitution constitutes one of the exceptions to this rule; that document set the original number of judges on the high court at five but allowed the legislature to increase the number later.4 The number of judges on the various state supreme courts varies from three in Delaware and Wyoming to nine in Iowa, Oklahoma, Texas, and Washington. About half the states have seven-judge courts, two have six, and remaining states have five.

4 Art. VII, sec. 3 . The practice of having supreme court judges serve a portion of a year as trial court judges has been eliminated in the United

States for all practical intents and purposes. A few states, notably the smaller ones in area, require the Supreme Court to sit at more than one location in the state; no state having such requirements makes the Court hold terms at more than three places.

The large states of Montana and Texas require their Supreme

Courts to sit only at the capital. Rhode Island and Vermont have allowed the Court itself to exercise discretion as to where it will sit.

In about one-third of the states the supreme court is em­ powered, either constitutionally or by statute, to sit in divi­ sions in order to handle the necessary appellate work load. In only five states, Alabama, Florida, Kentucky, Mississippi, and

Missouri, has the practice actually been used. The trend is very definitely toward a fairly small supreme court, sitting, en banc, and with the members giving their attention solely to

supreme court business.

Lower Appellate Courts. The amount of possible judicial

business in the new State of Alaska would probably not require

at the outset a set of lower appellate tribunals. These courts,

designed to serve as buffers for the 3tate supreme court, are

found in approximately one-third of the states today. As would

be imagined, their incidence is greatest in those states having 11 larger populations. Constitutional provisions respecting the judiciary in the Alaskan Constitution should be flexible enough, however, to allow the establishment of intermediate appellate tribunals if and when they might be needed.

Trial Courts of General Jurisdiction. A level of courts immediately below the Alaskan Supreme Court will most certainly be needed. This level will probably be a general trial court system empowered to try in its original jurisdiction causes arising under the Constitution and laws of the state. General criminal and civil jurisdiction would be vested in these courts and, following the practice of the western states, there would be no dichotomy between law and equity as found in some eastern states. Limited appellate jurisdiction from municipal and rural courts would also be necessary.

State practice in the nomenclature of this level of courts varies greatly. Some states call them superior courts, some circuit courts, and some district courts. Regardless of nomen­ clature, each such court exercises jurisdiction over a determin­ able geographic area. In highly populated areas, or areas of considerable litigation, such courts may sit in divisions.

Some question will arise as to whether, in the Alaskan situ­

ation, this level of courts should be invested with the probate

jurisdiction ordinarily found at the county or special probate

court level in most states. This is a question probably best resolved by the legislature within the framework of a unified court system and will be discussed in a later portion of this

Staff Paper. The general question of probate jurisdiction will, therefore, be passed over for the moment.

Local Courts of Limited Jurisdiction. Local courts will be needed in the new State of Alaska. In many ways this local court problem is the one least susceptible of completely satisfactory solution. Certainly the experience of the states has been that justice is least efficiently, economically, and correctly ad­ ministered at this level of courts. The system of United States

Commissioners in Alaska has never proved to be completely satis­ factory. The problem is doubly compounded for Alaska because of the relative isolation of many small Alaskan communities. These small communities cannot carry by themselves the financial burden of a full-time, well-trained, and highly qualified judge. Nor is such a person needed in such communities except on a very few occasions each year.

Yet there is a considerable amount of work to be transacted at this level of the judicial machinery. Classified in terms of amounts of money or in terms of the seriousness of crime the

business is "petty." But to the individuals immediately concerned the litigation or charge is of extreme importance. Moreover, in

terms of sheer numbers, the citizens1 associations with the

courts take place for the most part at this level. Impressions of the entire judicial machinery are often formed because of a contact with a justice of the peace or municipal court judge.

Significantly all studies which have been made of the ad­ ministration of justice have recommended the abolition of the justice of the peace court. These studies have condemned the excessive numbers, lack of qualifications, reliance on the fee system, lack of decorum, lack of facilities and necessary cleri­ cal assistance, poor keeping of records, lack of supervision, and low prestige of these courts. Moreover the justice of the peace system has been peculiarly susceptible of political man­ ipulation and has formed the basis for many local political machines. The magistrates’ courts, the urban counterparts of the justice of the peace courts, have been similarly criticized.

Provisions for magistrates’ courts and justice of the peace courts have customarily been made by statute. Yet some states have written even these lowest level courts into their constitu­ tions. Louisiana may be cited as an example, though it is true that the legislature was empowered to abolish the office of justice of the peace if it saw fit.5 For political reasons, the office has not been abolished.

The Delegates will almost certainly be thinking about and discussing this problem of the necessary administration of

5 Const., Art. VII, secs. 46 ff. The Louisiana Constitu­ tion devotes 3o pages of 10-point type to its judicial article, covering therein an extraordinary array of various types of courts, qualifications of judges, etc. justice at the lowest level, where whatever courts are eventually established will be of limited civil and criminal jurisdiction.

Yet the Constitution itself is probably no place to attempt the solution of such a problem. Logically the ultimate decision in the matter should be reached by the legislature and should be subject to change by that body to meet new circumstances.

The Problem of Special Courts. Courts of special juris­ diction have become increasingly common in recent years. Juvenile courts, orphans’ courts, domestic relations courts, small claims courts, and many others have made an appearance on the judicial scene. The theory underlying the creation of such courts has been based on the 20th Century idea of specialization. Juvenile courts are created so that judges and attaches especially trained to work with young people will be handling these special problems.

Domestic relations courts have been established under a similar argument. Small claims courts have been established not so much to gain the advantage of the experience of a specialized judge but rather to facilitate the settlement of claims too small to be handled economically in the regular courts.

Significantly, the great majority of these specialized courts have been established in densely populated areas, though courts for the handling of juveniles are now found in a number

of rural areas as well. There must be a basic case load present

in order to justify the expenditures of money necessary to the proper operation of such courts and this case load ordinarily does not exist outside the cities. Arguments against establish­ ing such courts by constitutional mandate are well-nigh over­ whelming, for prediction as to where such specialized needs would arise in the future are almost impossible.

Summary. At the outset, then, it is probable three levels of courts would be necessary to meet Alaska’s needs. (1) a

Supreme Court, (2) a level of courts of general civil and crim­ inal jurisdiction, with the possibility of probate jurisdiction as an added function, and (3) local courts.

Constitutional Provisions on Court Structure

Constitutional provisions on court structure should be drawn in general terms and should be so drafted that necessary altera­ tions to meet changing needs can be effected by the legislature without resort to the process of constitutional amendment. The constitution should provide for a Supreme Court and should prob­ ably provide, also, for the original number of judges of that

Court, with a provision that the legislature may later increase the number of judges.

The Constitution should empower the legislature to create inferior courts and probably should make no mention of court structure at the local level. Adherence to the latter idea will prevent much fruitless debate. A decision to avoid writing local court structure into the Constitution and empowering the legislature to create inferior courts will follow, in the main, 16 the pattern set by the Framers of the national Constitution in

1787. Local court structure can thus be altered easily when circumstances demand.

Some consideration must be given to the issue of whether or not the trial courts of general and civil and criminal juris­ diction should receive mention as such in the Constitution. The

Hawaii Constitution simply provided,

The judicial power of the State shall be vested in one supreme court, circuit courts, and in such inferior courts as the legislature may from time to time ordain and establish.6

The number of Supreme Court justices is set at a total of five.

No mention is made as to the number of circuit judges.

The New Jersey Constitution is somewhat more explicit on

the point. The judicial power of the state is vested in a

"Supreme Court, a Superior Court, County Courts and inferior

courts of limited jurisdiction.u7 The number of Supreme Court

justices is set at seven. The legislature is allowed to set the

number of Superior Court judges, in no case less than a constitu

tional figure of 24. The Superior Court is then divided, con­

stitutionally, into three divisions; Appellate, Law, and Chan-

eery. The Appellate Division thus becomes a buffer protecting

6 Art. V, sec. 1.

7 Art, VI, sec. I (1).

8 Art. VI, sec. III. 17 the Supreme Court of New Jersey against the pressure of appeals.

Such an appellate arrangement is not, of course, immediately required in Alaska. Functions of a number of specialized courts are incorporated into the Mew Jersey county courts with a resulting expansion of jurisdiction. The older jurisdiction of the county courts is made subject to change by law.

It should be noted that there is one superior court. The

Alaskan Convention may wish to consider the possibility of pro­ viding constitutionally for one court, by whatever name, of general civil and criminal jurisdiction. The principle of uni­ fication, so much stressed by legal authorities on judicial ad­ ministration would thus, when taken in combination with certain other points yet to be discussed in this Staff Paper, be incor­ porated into Alaskan fundamental law. To the legislature should be left the task of determining the precise number of judges for such a court and its various divisions.

There is another form which the Convention might take, should it care to do so, in writing a unified court system into the Constitution. The Convention might provide for a general court system, perhaps called a general court of justice, with a Supreme Court "department” (or other similar term) and such 9 other "departments” as the legislature might approve. If unification is desired, there is no particular advantage to

This is the arrangement set out in the Model State Constitution of the National Municipal Leage. Art. VI, sec. 600. 18 this type of language over that suggested in the previous para­

graph. If the Chief Justice be made the true administrative

head of the system, as discussed later in this Staff Paper, then

little will be gained by such sweeping constitutional terminol­

ogy. Neither, on the other hand, is there any major objection

to the use of such language.

One fact is, however, strikingly clear. The language chosen

by the Delegates must be susceptible of flexible interpretation

and must allow the legislature considerable leeway. The exper­

ience of many of the states has demonstrated conclusively that

writing detail into constitutions is generally to be frowned

upon but nowhere more so than in the judicial article. The

Delegates should not feel, in thus refraining from outlining

in detail the various levels of courts, the numbers of judges,

their geographic jurisdiction, etc., that they are not fulfill­

ing their responsibility. No element of "passing the buck"

to the First State Legislature is present. It is true that the

First Legislature will be a harrassed body, beset by the neces­

sity of implementing a thousand and one facets of the Constitu­

tion. But if mistakes are made by that Legislature, and they

will be, subsequent legislatures can easily correct them. A

mistake by the Convention is susceptible of correction only

through the process of constitutional amendment, whatever the

process may ultimately prove to be. 19

Jurisdiction of Courts

The second phase of the organization of the judicial system is that of the jurisdiction of the courts. The term has cropped up repeatedly in the past few pages,for it is well nigh impos­ sible to speak of court structure without including, at the same time, statements relative to the jurisdiction of the levels of courts which are created.

The typical state constitution is rather more apt to con­ tain excessive detail on the structure of the state court sys­ tem than it is to contain overly detailed descriptions of the jurisdiction of the various levels of courts. Nevertheless, state constitutions generally do contain material dealing with jurisdiction which has served to make the administration of justice inflexible in many cases. The tendency in recent con­ stitutions, like that of New Jersey, Missouri, and Hawaii, has been not only to simplify and centralize the structure of the judicial system but to cut down the amount of detail in the area of jurisdictional pronouncements. The Georgia Constitution, on the other hand, even though recently revised, devotes 11 pages of small type to its judicial article; jurisdiction of the various levels of courts is spelled out in detail.

The Hawaiian Constitution simply declared that the several courts established by the fundamental law and the legislature

"shall have original and appellate jurisdiction as provided by

law."10 The Model State Constitution is somewhat more explicit

10 Art. V . sec. 1. 2 0 on the point of jurisdiction:

The general court of justice shall have original general jurisdiction throughout the state in all causes, includ­ ing claims against the state. The jurisdiction of each department and subdivision of the general court of jus­ tice shall be determined by statute or by general rules of the judicial council not inconsistent with law, pro­ vided that the legislature shall determine the juris­ diction of the supreme court department by. law.11

The New Jersey Constitution contains the following provisions

on jurisdiction:

The Supreme Court shall exercise appellate juris­ diction in the last resort in all causes provided in this Constitution. . . . The Supreme Court shall have jurisdiction over the admission to the practice of law and the dis­ cipline of persons admitted. • • • • The Superior Court shall have original general jur­ isdiction throughout the State in all causes. The Superior Court shall be divided into an Appel­ late Division, a Law Division, and a Chancery Division. Each division . . . shall hear such causes, as may be provided by the rules of the Supreme Court.12

The problem of appellate jurisdiction is concisely sot out

further in section 5 of the New Jersey judicial article!

1. Appeals may be taken to the Supreme Court! (a) In causes determined by the Appellate Division of the Court involving a question arising under the Con­ stitution of the United States or this State; (b) In causes where there is a dissent in the Appellate Division of the Superior Court; (c) In capital causes; (d) On certification by the Supreme Court to the SuperiorCourt and, where provided by rules of the Supreme Court, to the County Courts and the inferior courts; and (e) In such causes as may be provided by law.

11 Sec. 601. The Model State Constitution establishes one general court of justice of which the various levels are parts, called departments.

12 Art. VI, infra. 21

2. Appeals may be taken to the Appellate Division of the Superior Court and from the Law and Chancery Divisions of the Superior Court, the County Courts, and in such other causes as may be provided by law. 3. The Supreme Court and the Appellate Division of the Superior Court may exercise such original juris­ diction as may be necessary to the complete deter­ mination of any cause on review.

The flexibility of the Hawaiian and New Jersey articles on the

subject of jurisdiction is apparent.

While the structure of the New Jersey court system is

manifestly more complicated than that immediately demanded by

the Alaskan situation, the Delegates will wish to consider

carefully the type of approach taken to the question of con­

stitutional provisions on jurisdiction in the Hawaiian, New 13 Jersey, and Missouri documents compared with that taken in

the Georgia Constitution14 and others with similar or greater

detail.15

The New Jersey Constitution does not mention probate juris­

diction specifically, though the county courts exercise this

power. The Missouri Constitution, on the other hand, actually

provides for a "probate court in each county" with

13 Mention of these three should not be taken to mean that there are not others which are generally on the less detailed side in the matter of constitutional provisions on jurisdictions. See, e.g., Tennessee Const., Art. VI.

14 Art. VI, especially sec. II, pars. 4 and 8; secs. IV, VI, VII, and XIV.

15 E.g., Maryland Const., Art. IV. The Maryland article is 20 pages long and provides a fine example of length, inflex­ ibility, and detail in judicial articles. jurisdiction of all matters pertaining to probate busi­ ness, to granting letters testamentary and of administra­ tion, the appointment of guardians and curators of minors and persons of unsound mind, settling the accounts of executors, administrators, curators, and guardians, and the sale and leasing of lands by executors, administra­ tors, curators, and guardians, and of such other matters as are provided in this Constitution.

While the issue of probate jurisdiction, as such, may not prop­ erly be a part of constitutional phraseology, the question is certainly one which, along with the establishment of local courts, will eventually require considerable attention by the legislature of the State of Alaska.

Constitutional Provisions on Judicial Personnel

The men of Massachusetts, it was said, could have made any

constitution work. The statement was a tribute to the American

revolutionary fathers. More than that, it places emphasis on

the importance of properly qualified persons, in the performance

of the many tasks of government. To speak of the importance

of personnel is not to deny that the finest type of individuals

can be unduly hampered in the efficient discharge of their duties

by poor organization and lack of legal authority. But the best

of systems will bog down if the personnel is of low quality.

Each profession likes to think that certain unique personal

qualities are required for success. How true this may be in each

case must be left to the psychologists. Certainly those judges

who have been rated most highly by their contemporaries have had

16 Art. V , s e c . 16. widely assorted temperaments, backgrounds, and training. Yet there have been striking similarities also, similarities of honesty and integrity, objectivity insofar as that trait is capable of attainment by fallible beings, technical knowledge, and a willingness constantly to be a student of the law

Provisions on the Qualifications of Judges

The qualities which really are necessary for a "good" judge are incapable of precise definition by constitutional or statu­ tory provision. All but three of the states and the national government have, however, set out in one form or another certain limited qualifications which judges must have. In some constitu­ tions qualifications are set out only for supreme court judges; other fundamental documents include the judges of lower courts, or some of them, as well.

Age, residence, United States citizenship, and experience are the four qualifications usually set out.

Three states, Connecticut, Massachusetts, and New Hamp­

shire, have set out no legal qualifications for judges whatso­

ever in their constitutions. A minimum age ranging from 21 to 35 years, is found in all but eight states for membership of appellate courts. All but eleven states have set up some sort

of minimum residence requirement for membership on the appellate

court level. Thirty-one states have decreed formally that appel­

late court judges shall be United States citizens. About three-fourths of the states have attempted to set requirements of experience. These requirements are so rudimen­ tary, however, that few persons who have been admitted to the practice of law before the state’s highest tribunal are unable to meet them. The phrases "learned in the law” and "legal experience" are the criteria most frequently established. It is interesting to note that in some states, like Texas, it has been held that even these requirements are merely recomendatory to the voters and that one may be chosen a judge even if he does not have these requirements:

A very small minority of states have incorporated require- ments like good character, sobriety, and belief in God. The

Maryland Constitution, for example, declares that judges shall be elected from those who "have been admitted to practice Law in this State, and who are distinguished for integrity, wisdom 17 and sound legal knowledge." Requirements of this type supply no very satisfactory yardstick for the choice of judges.

Elective versus Appointive Judges

Many decisions in regard to the structure and jurisdiction of the future Alaskan court system are probably best left to legislative choice. There is one decision, however, which must

perforce be made by the Delegates at College. The method of

choosing state court judges, or at the minimum the judges of

the Supreme Court, must be determined by the Alaskan Constitu-

tional Convention.

17 Art. IV, sec. 2, 25

During American Colonial times, judges were chosen by the king and held office for life, subject to good behaviour. This method of appointment and tenure was kept after Independence and most states down to about the time of the Civil War contin­ ued to obtain their judges through appointment by state governors subject to approval by state senates or state legislatures as a whole.

The stirrings of popular democracy, as the term is under­ stood today, were found in the Jacksonian period. By the end of the Civil War, considerable shifts in attitude toward the

American judiciary had taken place. The life tenure of judges was cut in many states and judges were elected rather than ap- pointed. States entering the Union after the Civil War and immediately prior to it almost universally provided for elective judgeships. Advocates of such an election process argued that it was basically more democratic and made the judges more res­ ponsive to the "will of the people." Indeed, in eleven states, the principle was carried to the point where judges to the

Supreme Court are elected from single member districts.

But the high hopes of those who were able to implement their views and provide for the elective judges were not realized.

Party hacks, rather than persons who were best qualified, ran for the elective positions, in numerous instances. The type and quality of state judicial personnel thus attracted was not up to the equal of the federal judiciary, where the appointive principle continues to operate today.

That the principle of elective judges continues to have immense vitality today cannot be doubted. 18 There are many states where constitutional revision has been defeated at one stage or another because the advocates of such revision have espoused appointive judgeships or some variation of the ap­ pointive principle. There are, therefore,, sound reasons for the Delegates to the Alaska Constitutional Convention to examine the problem of methods of selecting judges with some care.

Students of the problem of choosing judicial personnel are fairly well in agreement that the election process is not

the best method for securing good judges. Men who are by tem­

perament capable of waging energetic and successful election

campaigns are not always equally well qualified for a judicial

position; time and again this point has been demonstrated in

practically every state where the principle of elective judge­

ships prevails.

Nevertheless certain practical factors have appeared on the

scene which have served to mitigate a bit the defects of the

elective system. First of all, it has been found that most

sitting judges do run for reelection, and often without opposi­

tion, A second factor of great importance is that there are

18 Three states, South Carolina being the notable example, let the legislature, rather than the governor, select the judges. comparatively few original elective judgeships, particularly at the level of the higher courts. Ordinarily, a judge con­ tinues to run for reelection, and is elected without opposi­ tion, until he dies. If he retires, he frequently does so not at election time but rather in midterm. The practical effect of this process is that the Governor appoints a person to fill the vacancy until the next election— at which time the person appointed ordinarily runs for reelection without opposition. A third factor may be mentioned in connection with the elective judgeship idea. Sixteen states using the principle have switch­ ed the election process to a time other than that when elections for important political offices are held and have utilized a non-partisan ballot, thus removing to some extent at least the play of partisan politics. If the elective process is the one that is finally chosen by the Alaskan Convention, the non­ partisan election, held at a time other than that when import­ ant national offices are in dispute, deserves consideration.

Recently Developed Methods of Selecting Judges

Concern over the generally poor quality of judges resulting from the elective process, even with the mitigating factors just mentioned, has resulted in some hard thinking by bench, bar, and

interested laymen. While 45 of the 48 states continue to elect

judges at one or wore levels of their state court system, the

trend of newer constitutions has been away from the straight

elective process at the higher levels. The Missouri Plan. The major interest has centered on a plan given general approval by the powerful and influential

American Bar Association. Popularly, the plan is known as the

Missouri plan, though in actual operation the Missouri scheme is a modification of a plan adopted earlier in 1934 in Califor­ nia. The plan is a combination of the appointive and elective ideas. Original appointment to the appellate courts of Missouri is effected by the Governor, but his choice is limited to a panel of three names determined by a nonpartisan judicial com­ mission composed of the Chief Justice of the Missouri Supreme

Court as chairman and six members. The six consist of three lawyers, one elected from each of three courts of appeals dis­ tricts, and three laymen appointed by the Governor, one from each of the three districts. Terms of the members are for six years, with the exception of the Chief Justice, and are stagger­ ed so that one member retires each year.

The judge so selected serves for one year and at the next general election following the year of service, the judge’s name goes on the ballot, without opposition, with the voters saying "yes" or "no" to the question of whether or not he shall continue in office for a regular term. The term for judges of the Supreme Court and the appeals courts is twelve years. A similar selection process operates for judges of the state trial 19 courts; their term is six years.

19 Missouri Const., Art. V, sec. 29(a)-(g). Thus the judge runs, in effect, against his record. At the end of his regular term, should he desire another, he once again runs against his record. Should the voters’ answer be

"no" at any time, the Governor makes another appointment in the same fashion as just outlined. The plan thus combines the features of the appointive system and enables the voters to have a say in the process of retention. Moreover, a politically minded governor would find his powers to fill the judiciary with political hacks somewhat curbed. The Bar is given a voice in the process of original appointment but not to the exclusion of the layman.

The system has been favorably appraised by Missouri comment­ ators and by the American Bar Association. In at least one instance, the voters did refuse to retain a judge at the end of his probationary period. Missouri voters have specifically approved the plan as a whole on three separate occasions; it was adopted as a constitutional amendment in 1940; it was ap­ proved a second time in a referendum held in 1942; and it was carried over into the new Constitution in 1945.

The California Plan. The California plan allows the Gover­

nor to make the original appointment subject to the approval of

a commission. The Missouri Plan thus limits the Governor’s

discretion of choice more than the California system. Appellate

and Supreme Court judges in California serve twelve year terms, 30 at the end of which time the judge may at his request be put on a ballot without opposition with the question of retention the sole issue to be decided by the voters. If the judge does not declare himself, the Governor makes another appointment.

There is no probationary period as in Missouri. It is important to note that the California Plan has drawn criticism because the commission has become in many instances a mere ratifying agent of the Governor.

The Model State Constitution Provisions The plan of the

Model State Constitution is nowhere in effect. It is novel in that the Chief Justice holds the appointing power and makes the appointment from a panel of three names drawn up by the Judicial

Council. The judge serves a year's probationary period, as in the Missouri Plan, and then goes on the ballot "against himself" as in the Missouri Plan. At the end of four years the judge would again go on the ballot. If approved, he would serve the 20 remaining eight years of a total twelve-year term,

The New Jersey and Hawaiian Examples. The New Jersey Con­

stitution of 1947 provides that the Governor shall appoint the

"Chief Justice and Associate Justices of the Supreme Court, the

Judges of the Superior Court, the Judges of the County Courts

and the judges of the inferior courts with jurisdiction extend­

ing to more than one municipality" with the consent of the New 21 Jersey Senate. Supreme and Superior Court judges hold office

for an original seven year appointment, and if reappointed hold

20 Sec. 602 21 Art. VI. Sec. vi. office for life subject to good behaviour.

The Hawaiian provision is very simple. Judges of the

Supreme Court and the circuit courts would be appointed by the 22 governor subject to senate approval. The term of a supreme

court judge is seven years and a circuit court judge six.

These appointive provisions represent a return to the

original American state practice and the practice on the

federal level.

Summary of Selection Methods. In the selection of judges,

the definite trend is back to the appointive method or some

variation of it, as illustrated by the Missouri, California,

New Jersey, and Hawaiian examples. The American Bar Associa­

tion has been especially instrumental in pushing the Missouri

Plan of selection.

Certainly the judge should be independent of political and personalpressures. This concept of the independent judiciary is

one of the truly important features of American democratic

government. How best to obtain and retain that independence

for judges of the State of Alaska is based in no small measure

upon the method of selecting judges which is chosen by the

Alaskan Convention.

Provisions on the Tenure of Judges

Tenure also is a major factor in the preservation of the

independence of the judiciary. Some would hold it more important

22 Art. V, sec. 3. than the method of original selection. On the national level, the principle of tenure on good behaviour has been preserved

(with generous provisions for retirement) but by the start of the 20th Century it had been abandoned almost everywhere else.

The arguments in favor of shorter tenure are fundamentally the same as those advanced in favor of election of judges. The theory is based on the idea that judges under life tenure tend to become overly conservative and to lose sight of the fact that times, and the needs of the times, change. If such a judge attempts to write his economic and social predilictions into his constitutional interpretations, then society is in for trouble. This line of argument of course ignores the notion that the judicial branch is at times expected to stand as a buffer against momentary and transient popular majorities.

Only two states in the Union, Massachusetts and Rhode

Island, appoint their high court justices originally for life, subject to good behaviour. Mew Hampshire appoints the justices to serve until age 70, in effect an appointment for life, and New Jersey appoints for a seven year term with reappointment until age 70. The terms of high court justices in other states varies from two years in Vermont to 21 in Pennsylvania. Eight­ een states have 6 year terms and 9 eight year terms. Other states have 10 and 12 year terms, except Mine which has a seven year term, New York and Louisiana which have 14 year terms, and Maryland which has a 15 year term. 33

As an ideal, tenure to a reasonable retirement age may be desirable for justices of the highest court. A majority of states, however, have settled on definite tenure ranging from 6 to 15 years. The Missouri and California Plans represent modern approaches to the tenure problem.

Provisions on Salaries and Retirement of Judges

We are concerned primarily here with the possibility of constitutional provisions on the retirement of judges. Most

state constitutions have not, and quite properly so, been con­

cerned with setting the amount of the salary of judges or with

outlining complicated pension and disability schemes for judges .

These are matters properly within the province of the legislature

The majority of state constitutions have followed the lead of

the federal Constitution and have provided that the salaries

of the judges of the state court system shall not be diminished 23 during their term of office. This is certainly a sound pro­

vision in aid of the independence of the judiciary.

The question of retiring judges, except when they choose

voluntarily to do so> is a delicate matter. A senile judge

does not always recognize hi3 infirmity and in most state con­

stitutions there is little way of forcing retirement except

through the extra-legal process of prevailing upon him not to

run at the next election. In the case of such a judge, one

might be disposed to argue the efficacy of short judicial, terms;

23 E.g., Tennessee Const., Art. VI, sec. 7. The New Jersey Constitution attempted to make specific provision for forced retirement in the following terms:

Whenever the Supreme Court shall certify to the Gov­ ernor that it appears that any Justice of the Supreme Court, Judge of the Superior Court or Judge of the County Court is so incapacitated as substantially to prevent him from performing his judicial duties, the Governor shall appoint a commission of three persons to inquire into the circumstances; and, on their recommendation, the Governor may retire the Justice or Judge from office, on pension as may be provided by law.24

The Missouri Constitution of 1945 provided for compulsory retire­ ment for "continued sickness or physical or mental infirmity"

through a committee of three supreme court judges, one judge

from each of the three courts of appeals, and three circuit

judges, all elected by their respective courts. A finding of

two-thirds of the committee sends the subject judge into retire- 26 ment at half pay.

The Maryland Constitution makes the procedure far more

difficult by requiring a two-thirds vote of each house of the

legislature plus the approval of the governor for forced re-

tirement. New Hampshire, as has been noted, appoints judges

to serve until the age of 70, thus neatly solving the retirement

problem if a judge's physical and mental ability decline beyond

usefulness upon attaining the 70th birthday. A compulsory re-

tirement age of 70 is fixed by constitutional provision in

Connecticut, New Jersey, and New York, 75 in Missouri, and 80

in Louisiana.

Art. VI, sec. VI (5). Another paragraph of this section states that provisions for the pensioning of justices shall be made by law. Art. V, sec. 27.

Art. IV, sec. 3 . All the states have, of course, made statutory provision for voluntary retirement machinery. In some cases the statutes

set a compulsory maximum retirement age as well as a voluntary minimum age. Minimum age retirement ranges from no set age,

but with a minimum number of years of service, to set minimum

ages plus minimum years of service.

Mention has been made of the statutory systems because

the creation of such systems is sometimes accidentally made

difficult by other constitutional provisions. Alabama, for

example, has a general constitutional provision against the

payment of pensions" thus retired judges serve as supernumerary

judges and assist active judges. The New Jersey Constitution,

on the other hand, specifically provides that the legislature

shall provide for the pensioning of judges.27 The Delegates

to the Alaska Convention may wish to consider such a provision.

Provisions on the Removal of Judges

Compulsory retirement is, of course, one method of remov­

ing judges. 3o also is the voluntary method, if influence can

be brought to bear on a given judge behind the scenes. This

section of the Staff Paper is concerned with the more direct

methods of removal, ordinarily for causes other than those which

would necessitate retirement.

Impeachment is the most common and well known of these

methods. All states but two make judicial officers subject to

27 Art. VI, sec. VI(3). 36 it. Impeachment as a method of removal of public officers is prohibited in Oregon; they may be tried for malfeasance, etc., 28 as for other criminal offenses In Nebraska, the impeachment is voted by the unicameral legislature but is tried by the

Supreme Court, or, if a Supreme Court justice is involved, by 29 all the district judges of the state. While the efficiency of impeachment as a method of removal has been much argued, its almost universal application to members of the state judiciary have made its inclusion automatic in recent constitutions like

Missouri, New Jersey, and Hawaii.

A second method of removing judges, available in 29 states, is that of the legislative address, or joint address or joint resolution as it is sometimes called. The majority required in the two houses is usually two-thirds. The method is clumsy and rather more apt to have a political basis than the process of impeachment, since the latter is generally regarded as a more serious type of action. The process has been used in Massachu­ setts with a considerable degree of objectivity and lack of political bias.

One of the favorite panaceas much prescribed by some stu­ dents of government in the early part of the 20th Century was the recall. Usually the recall was tied in with two other in­

struments of popular democracy, the initiative and the refer­ endum. As applied to judges the recall has had a stormy and

28 Const., Art. VII, sec, 6. 29 Const., Art. Ill, sec. 17 37 unsatisfactory history. At the present time, only eight states apply it to judges30 and but twelve states have the provision applicable to other officers. It would seem that the very nature of the judiciary and the demands placed upon it would

be sufficient reason for not incorporating into the Alaskan

Constitution such provisions applying to judges.

The chief executive of the state plays a very limited part

in the removal of lower court judges in California, Florida,

and New York. Mention has already been made of the role of

the governor in the compulsory retirement provisions of the New

Jersey Constitution. In a few states, justices of the peace

are subject to executive removal.

Mention has previously been made, too, of the Missouri

provision on compulsory retirement of judges which is, in effect,

a judicial method of removal. Some six or eight states have

variations on this type of removal. The Delegates will wish

to consider some methods for removing judges as well as for

their compulsory retirement. A general provision in the Con­

stitution on impeachment applicable to all state officers will

include the judges and no further specific mention of them needs

to be made to make them subject to impeachment. The process of

joint address may be similarly phrased. So far as the recall

is concerned, it may be remembered that Arizona's bid for

Arizona, California, Colorado, Kansas, Nevada, North Dakota, Oregon, and Wisconsin. 38 statehood was negatived until she removed from her proposed state constitution a provision allowing the recall of judges.

She removed the offending provision and then, upon the assump­ tion of statehood, restored it. Whether any of the other methods

deserve Constitutional consideration is a matter for considera­

tion by the Delegates.

Summary of Provisions of Judicial Personnel

There are, then, five phases to the general problem of

constitutional provisions on judicial personnel: qualifications,

methods of selection, tenure, salaries and retirement, and removal.

The first of these can be included in the Alaskan Constitution

only in broadest terms and any qualifications set out will neces­

sarily be extremely minimal and will not guarantee well-qualified

personnel.

The second and third phases are matters about which the

Convention will have to reach conclusions. Various methods of

selection are available and each method has its strengths and

weaknesses. The Constitution should not mention specific sal­

aries but the Convention may wish to consider some machinery

for the compulsory retirement of incapacitated or physically

or mentally infirm judges. The question of provisions on removal

may well be solved by general provisions applicable to all state

officials, or at least officials of the executive and judicial branches. ■ni-.-W

Constitutional Provisions on Judicial Administration

Judicial business in the average state is not performed

with efficiency and economy. Ordinary practices of sound manage­

ment have not been applied to the operation of courts in most

cases. Yet court activity can, and should, be handled efficiently!

Many of the principles of management which have been proved

practicable in private business and in the executive branches

of many state governments can be applied to judicial operations

with a saving in time, an increase in efficiency, a substantial

saving of public funds, and a positive gain in the process of

doing justice. Quite frequently dockets of one branch of state

courts have been crowded while judges of another branch sit in

idleness” cases are not always promptly called nor heard. More

important by far, the courts of many states have been forced

to function under rules of practice and procedure which are

archaic and entirely unsuitable for 20th Century judicial activ­

ity. These rules often cannot be changed, even though the judges

recognize the necessity for change, because the power to set

the rules of practice and procedure has been lodged not in the

courts but in the legislature,

There are three phases to the general problem of judicial

administration. The Delegates of the Alaska Constitutional

Convention will wish to consider constitutional provisions on

each of these three phases, whether or not such provisions become a part of the final document. The three phases are: (1) rules of practice and procedure:, (2) administrative office of courts: and (3) the judicial council Rules of Practice and Procedure

The layman is generally aware that courts function under certain rules. If he has occasion to become involved in liti­ gation before the courts, he usually becomes quite irritated in a very short space of time with what he is apt to call

"legal hairsplitting" or "legal gobbledygook." Rules of practice and procedure of most states are customarily well nigh incom- I prehensible to the average layman. What the layman may not

know is that the members of the Bench and Bar themselves are

sometimes confused by the multitudinous rules of procedure and

the infinite variations and exceptions to which they are subject.

The power to make such rules of procedure must lie some­

where. By this rule-making power is meant not only those sub­

sidiary acts or supplemental rules consistent with legislative

acts which every state permits its highest court to provide, but

the power to alter, amend, and rescind any rule of practice

and procedure, any law to the contrary notwithstanding, which

does not abridge, enlarge, or modify the substantive rights of

any litigant. Sometimes this is called the complete rule-making

power.31

31 ”The Rule-Making Power in the Courts,” Projet of a Constitution for the State of Louisiana, 1, 979* For many years the great majority of the states vested the power to make rules exclusively in the state legislature or allowed the courts to share the power subject only to final approval by the legislature. Lawyers and judges found, however, that there were deficiencies in this type of rule-making. Leg­ islatures were not, and are not today, always sympathetic with the problems of the judiciary in the field of practice and pro­ cedure. Moreover, legislatures, being in session on the average

but a few months every two years, could not give the proper attention to a subject which interested them little and in which

they had no basic understanding. The biennial session has

meant, also, that necessary changes in rules were unduly delayed.

The trend in the last four decades, starting with New Jer­ sey in 1912, has been to transfer the rule-making power from the legislature to the courts, or at least to allow the courts

a much greater say in the process. The process of transfer

has been particularly evident since 1930. For the most part,

this transfer of power to promulgate, amend, and alter rules

of practice and procedure has been accomplished without resort

to constitutional provision. In the absence of constitutional

provision, state legislatures have been held able to accomplish

the transfer of authority by statute.

Three states have placed the rule-making authority in their

courts by constitutional provision. The New Jersey Constitution

of 1947 provides that the Supreme Court shall make rules governing the administra­ tion of all courts in the state and, subject to law, the practice and procedure in all such courts. The Supreme Court shall have jurisdiction over the admission to the 32 practice of law and the discipline of the persons admitted.

The Maryland Constitution was amended in 1944 to provide that the

Court of Appeals (the name of the high court of Maryland) could

make rules and regulations to regulate and revise the practice and procedure in that Court and in the other courts of this State, which shall have the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law. The power of the courts other than the Court of Appeals to make rules of prac­ tice and procedure shall be subject to the rules and regulations prescribed by the Court of Appeals or other­ wise by l a w . 33

Michigan also has delegated the rule-making power to the courts by constitutional provision, and the Hawaii Constitution places the power to promulgate rules of civil and criminal procedure

3 4 in the Supreme Court.

Twenty-three states today invest the highest court v/ith

rule-making power; three of these states do it by constitutional

provision as just noted, and the Hawaii Constitution would do so.

32 Art. 32 VI, sec. II, par. 3. The phrase "subject to law" was interpreted in Winberry v. Salisbury. 74 Atl. 2d 4O6 (1950), as meaning that the rulemaking power in the New Jersey Supreme Court was not subject to overriding legislation. However the power was to be strictly confined to practice, procedure, and administration as such. It was pointed out that the phrase "subject to law" was added because there was some question in the Convention as to the power of the Court to make regulations trenching on substantive, as opposed to adjective, law in the absence of such a qualifying phrase. 33 Art. IV, sec. 18a. 34 Ar 34 t , V, sec. 6. The remaining twenty accomplish the delegation by statute. Of the twenty-three states, thirteen allow coverage of both civil and criminal procedure; ten limit the power to civil procedure only. Two categories of statutes may be briefly noted. The first type requires submission of the proposed rules to the

state legislature so that they may be altered, amended, rescinded, 35 or disposition otherwise made of them. The second type of 36 statute requires no submission.

The model of proper rules of procedure has been, of course,

the Federal Rules of Civil Procedure. They are simple, concise,

and adequate. The original Rules of Civil Procedure were adopted 37 in 1933, pursuant to Act of Congress in 1934. This act auth­

orized the Supreme Court to promulgate a single uniform set of

general rules applicable to all civil cases. The Rules as pro­

mulgated and any future changes as well were subject to Con­

gressional veto or amendment; they were to be reported to Con­

gress at the start of a regular session and were to lay before

Congress until the end of a session. The 1938 Rules of Civil

Procedure have been subjected to major revision since originally

promulgated. The actual job of suggesting changes has been

accomplished by a committee consisting of judges, lawyers, and

35 As in Florida, Iowa, South Dakota, Texas, and Wisconsin.

E.g., Arizona, Colorado, New Jersey, Pennsylvania, and Washington.

Now incorporated in 28 U. S. C., sec. 2072. 44

law professors. The Federal Rules of Civil Procedure have been

adopted in the Territory of Alaska.

Acts of Congress in 1933 and 1940 granted the United States

Supreme Court the power to prescribe rules of practice and pro­

cedure in criminal cases. The Federal Rules of Criminal Proced­

ure became effective in 1946. Effective 1 July 1954, the Supreme

Court put into effect a completely revised and reworked set of

Supreme Court Rules.

There can be little argument that the courts should be

invested with the rule-making power. The first recommendation

adopted in 1936 by the House of Delegates of the American Bar

Association declared that "practice and procedure in the courts

should be regulated by rules of court- and that to this end the 38 courts should be given full rule-making powers." The courts

are certainly the best instrument for accomplishing the aim of

uniform and adequate rules of practice and procedure.

In practice, however, it has been found that even though

the judiciary is granted such powers, whether by constitutional

provision or by statute, some additional stimulus is needed to

get the project going. Real and substantial progress in revis­

ing outmoded and antiquated rules has been made in most cases

only where some supplemental agency, such as an advisory com­

mittee or a judicial council, has provided the necessary im­

petus. Such supplementary assistance is sometimes specifically

38 American Bar Association, The Improvement of Justice. A Handbook (3rd ed., 1952), 10-12.

S i s 45 provided by statute, but the majority of the states which invest their supreme courts with the rule-making power have made no provision at all in their statutes for such assistance.

So far as the Delegates to the Alaskan Constitutional Con­

vention are concerned, the problem is fundamentally one of whether|

or not the rule-making power should be invested in the Supreme

Court of the State by constitutional provision. In the absence

of any provision on the rule-making power, the legislature would

have the power to adopt such a provision, but in absence of

constitutional provision the legislature could retain the power 39 itself. Were the Delegates to make constitutional provision

for a judicial council, discussed later in this Staff Paper,

then they might wish to incorporate as one of the functions of

such a council the duty to serve as an advisory or supplemental

agency to the Supreme Court in the promulgation of rules of

practice and procedure.

An Administrative Office for the Courts

In recent years there has been an ever-increasing realisa­

tion on the part of persons interested in the administration of

justice that a number of the problems involved are not strictly

judicial but administrative in character. There are many prob­

lems in court operation besides that of deciding cases. In a

39 In the absence of constitutional provision granting rule-making power to the courts and in the absence of a statutory enactment to similar effect, some legal question would arise as to whether the courts could exercise such authority on their own initiative. judicial system of any size there are the many day-to-day prob­ lems involving such things as payrolls, accounting, preparation

of budgets, purchase of books and supplies, and many other such activities, including, in a well ordered system, statistics on

types of cases, their disposition, etc. There is also the ad­

ministrative problem of seeing that the various units of the

system are keeping abreast of their dockets, that proper dis­

position of cases is being made, and that particular judges

are not overworked while others have comparatively little to do.

The executive branches of state governments have a certain

amount of centralization for administrative purposes. Private

business has long since learned that certain administrative

functions must be centralized in order to maintain proper effi­

ciency and coordination. The judicial systems of the United

States, however, have not as a general rule been operated on

such a basis, even though there are many elements of judicial

activity that should be so run. In the great majority of states,

individual judges have carried on fairly much as their own spirit

and inclinations have moved them.

Prior to 1922, the federal judiciary conducted its activi-

ties with each court virtually an independent unit. There was

no unifying or supervising head. In that year, Congress gave

the Chief Justice of the United States some supervisory auth-

-rity and created the Judicial Conference of Senior Circuit

Judges. Experience with the system proved thathighly benefi-

fits fits results should be obtained from centralization of administrative activity. In 1939 the Administrative Office of

United States Courts was created, with a Director and an Assis­ tant Director holding office at the pleasure of the Supreme

Court 40

This Administrative Office has no administrative duties relating directly to the Supreme Court, but it has many duties relating to the other courts in the federal system. The Director

of the Office, working under the Judicial Conference, has three

primary functions. He is first of all responsible for the

collection of judicial statistics' these statistics have provided

valuable insights into many judicial problems, such as the

creation of additional judgeships, necessity for additional

professional and clerical help, etc. He is responsible for

preparing the budget of the court system and directs the spend­

ing of money. His third responsibility is the supervision of the administrative personnel of the lower court system. He may be given additional functions from time to time by the

Judicial Conference.

The results have been striking. Judges have been relieved

of many administrative functions which previously took far too much time from their judicial activities. The administrative affairs of the federal judicial system have taken on a great

degree of uniformity. Efficiency has increased many fold. In

a few instances relieving judges of administrative burdens has ------40 Now incorporated into 28 U. S. C., sec. 601. meant that no additional judges were necessary in districts where it appeared previously such would be the case.41

Few states have followed the federal lead. The reason is,

in most cases, a very obvious one. Many of the state lower

court judges have political reasons for desiring to continue as

independent agents in the operation of their portions of the

state system. Tradition and inertia, too, play a part in

retaining highly decentralized machinery.

The few states that have made centralizing efforts have

reaped considerable benefits from the change. The machinery

adopted for such centralization has varied greatly from state

to state. The New Jersey Constitution of 1947 represents the

most complete statement on the subject which has been written

into state fundamental law;

1. The Chief Justice of the Supreme Court shall be the administrative head of all the courts in the State. He shall appoint an Administrative Director to serve at his pleasure, 2. The Chief Justice of the Supreme Court shall assign Judges of the Superior Court to the Divisions and Parts of the Superior Court, and may from time to time transfer Judges from one assignment to another, as need appears. . . . 3. The Clerk of the Supreme Court and the Clerk of the Superior Court shall be appointed by the Supreme Court for such terms and at such compensation as shall be pro­ vided by law.42

41 The statement should not be misconstrued. There are still federal district courts which are two to three years behind in their dockets, and one district court is, at present, 51 months behind.

42 Art. VI, sec . VII. Notice that no separate administrative office was established as in the federal system; the Chief Justice is the administrative officer, working through a Director whom he appoints. It is interesting to note that the duties of the Director are left to the discretion of the Chief Justice.

West Virginia, in 1945, enacted a statute modeled quite largely after the federal machinery.43 It provided for an ad­ ministrative office of the Supreme Court of Appeals.4 4 The director of the office is appointed by the judicial council of the State. In 1937 Connecticut authorized the appointment of an executive secretary. Pennsylvania in that same year adopted a somewhat similar system. New York handles the admin­ istrative function in connection with judicial council activities.

The proposed Constitution for the State of Hawaii makes the chief justice the administrative head of the courts and empowers him to appoint an "administrative director" to serve at his

pleasure. The chief justice is given the power, too, to assign

judges from one circuit to another for temporary service.45 The unified court system, discussed previously in this Staff Paper, is not absolutely essential to efficient administra- txon of a state court system. It must be emphasized, however,

43 West Virginia Code of 1949, sec. 5194(15).

44 The name given the West Virginia high court. 45 sec.5.Art.V, that efficient administration is greatly facilitiated by such a system. The Delegates to the Alaskan Constitutional Conven­ tion will wish to consider, therefore, not only the problem of whether or not the Constitution should make provision for some

sort of centralized administration, but whether or not this

centralized administration should be tied into a unified judi­

cial machine.

The Judicial Council

Judicial councils are relatively recent innovations on the

governmental scene; the first such council was established in

Ohio in 1922. A judicial council is a continuing body with the

responsibility for conducting regular studies for the improvement

of the administration of justice in the state. The council sys­

tem, to be of fullest value, should be so empowered that its

studies may encompass the entire range of judicial activities

and operation, including such items as rules, basic court

structure, statistics, etc. It may be noted, too, that in the

case of New York and a few other states, judicial council activ­

ity extends in limited fashion to certain supervisory and ad­

ministrative functions. Such an activity is not, however, in

keeping with the idea of judicial councils as they have ordin­ arily been conceived and created.

The council reports at regular intervals to the legislature

and/or the courts, depending upon the statutory or constitution­

al requirements placed on it in this regard. Council studies 51 and recommendations usually require implementation, either by the legislature or by the courts as the case may be. If the constitution or legislature has vested the rule-making power in the courts, then council recommendations on such matters may be

implemented without recourse to the legislature. On other matters council recommendations require legislative implementation. It is not ordinarily the purpose of a judicial council to be more than an agency of recommendation.

Thirty-five states have established judicial councils,

though four of these organizations are inactive and perhaps

eight or ten others almost so. Practically all of them have

been established by statute, though an occasional one has been

established by a rule of the Supreme Court of the State or by

action of the state bar association. The State of California

established its judicial council in 1926 by constitutional pro­

vision, the only state to have done so. This organization has

not only the usual functions but is empowered to adopt rules

of practice and procedure not inconsistent with the laws in

f o r c e . 46The Model State Constitution would create a judicial

council which would have administrative and quasi-legislative

powers as well as the usual research and supervisory functions.47

The structure and size of judicial councils varies greatly.

From a lower limit of three members in Missouri, size ranges

46 Const., Art. VI, sec. la.

47 Art. VI, sec. 604.

»

53

Summary

The basic problem to be faced by the Delegates relates to constitutional provisions on (1) the organization of the judicial system of the State, (2) the personnel of that system, and (3)

the administration of the court system which is established.

As various issues arise, the Delegates have before them the

basic experiences of other states, most of which have been

caught in the toils of overly detailed provisions which have

made it impossible for judicial systems to keep pace with the

economic and population growth of the states.

The Alaskan Constitutional Convention is in the fortunate

position of being able to adopt many of the more modern practices

sanctioned by such groups as the American Bar Association and

the American Judicature Society. The unified court system,

the Missouri Plan for the selection of judges, administrative

centralization of the judicial system, power in the courts to

establish rules of practice and procedure, the establishment

of a judicial council— these and other improvements will

necessarily demand careful consideration with a view toward 48 possible incorporation in the fundamental law of Alaska.

-000-

The Book of the States. 1954-55. (published by the Council of State Governments, contains 7 tables summarizing the judiciary provisions of the 48 states. See pp. 435-442.